ESI – E-Discovery LLC https://www.ediscoveryllc.com Mediation of E-Discovery Disputes Sat, 31 Oct 2026 18:49:59 +0000 en-US hourly 1 Motion to Permit Limited A.I. Review of “Confidential” Video Was Denied https://www.ediscoveryllc.com/motion-to-permit-limited-a-i-review-of-confidential-video-was-denied/ Sat, 31 Oct 2026 08:59:06 +0000 https://www.ediscoveryllc.com/?p=5724 […]]]> AI Protective Orders address how or if a receiving party can use artificial intelligence to analyze discovery materials produced by an opponent.  Some address all discovery materials.  Others are limited to confidential discovery materials.  Some specify permitted and prohibited platforms by name.  Others specify functionality.  A few do both.  Some are a page long; others are only a paragraph.  Most are entered by agreement of the parties.  However, there are a few cases in which a request for an AI Protective Order is contested.  This blog focuses on one of the contested cases and discusses several other related issues.

Plaintiff filed a Motion to Modify Protective Order to Permit Limited Artificial Intelligence (“AI”)-Assisted Review of Body-Worn Camera (“BWC”) evidence. The motion was denied in Baqleh v. Altamirano, 2026 WL 3257576 (N.D. Cal. Oct. 28, 2026).

After plaintiff sued for claims arising out of his arrest, “the Parties stipulated to a Protective Order (‘PO’) that mirrored the Court’s model protective order, which the Court granted.”

However, “Plaintiff now moves the Court to modify the PO to allow Plaintiff to use ChatGPT to review body-worn camera footage Defendant produced in discovery and marked as ‘CONFIDENTIAL.’” The court explained that:

Plaintiff seeks to use ChatGPT to create timestamps, prepare a chronology, transcribe the video, and identify events within the video for purposes of discovery, motion practice, settlement, and trial preparation, but says he will not prepare analysis to use as admissible evidence.

After Defendant replied, Plaintiff narrowed his request and “now seeks AI-assisted review through a ‘business or private AI service’ with ‘safeguards required by the Court.’”  In my words, Plaintiff’s modification proposed to use a secure, enterprise, or fiduciary grade A.I. provider instead of a public, consumer-grade system.  However, the Plaintiff asked the court to set those safeguards.

The Baqleh court wrote: “Some courts have recently permitted the use of AI-assisted review when parties have agreed to use AI during discovery to analyze large quantities of data….  In this instance however, Plaintiff is not seeking to use AI for that purpose. Instead, Plaintiff asks the Court to permit disclosure of confidential information to a third-party within the structure of the existing PO.”

The Baqleh court held that, balancing the need for discovery against the need for confidentiality, Plaintiff had not shown good cause.

The Plaintiff’s argument was:

Plaintiff believes the Court should permit him to use ChatGPT to review confidential evidence because he is pro se and does not have support “reviewing and organizing audiovisual discovery.”…

Defendant countered:

Defendant responds that Plaintiff does not need AI assistance because the BWC video evidence is only 30 minutes long, and Plaintiff does not contest this representation about the length of the footage…. Defendant argues that, aside from being unnecessary, there is substantial risk in using a public large-language model platform to process confidential information…. Defendant represents that uploading confidential evidence to ChatGPT risks disclosure of information such as non-party criminal history, parole status, probation status, drug use, police investigations, and driver’s license numbers, all of which Plaintiff acknowledges to be “sensitive information.”

Id. at *2.  The court explained its reasoning:

The Court finds that the balance of conflicting interests weighs in favor of Defendant’s position. It is not disputed that exposing confidential information to ChatGPT creates at least some risks with respect to how that information will be used and safeguarded…. While Plaintiff proposes several potential safeguards to prevent disclosure of the information Defendant identifies, he does not cite anything confirming the availability or reliability of those safeguards…. So, there would need to be some substantial offsetting benefit that outweighs these risks, but Plaintiff has not shown that specific harm will result if his motion is not granted. Reviewing a 30-minute video for the purposes Plaintiff says he would use ChatGPT for is not an overbearing task that disadvantages a pro se party. For example, to the extent Plaintiff wants to create a chronology of the video, he can easily do so by taking handwritten notes. The Court thus denies Plaintiff’s request to use ChatGPT to review the confidential BWC evidence.

Id. at *2 (emphasis added).

In a footnote, the court addressed and rejected Plaintiff’s offer to narrow the request:

Plaintiff’s Reply appears to narrow his request by asking for “AI-assisted review through a business or private AI service” where he can show that safeguards exist…. Plaintiff’s new formulation does not change the Court’s analysis, because the balance between (some) risks and (essentially no) benefits remains unchanged. Plaintiff also requests in the alternative for the Court to modify the PO using the framework outlined in Morgan v. V2X, Inc., 2026 WL 864223 (D. Colo. Mar. 30, 2026), to accommodate Plaintiff’s request to use AI to review the video footage…. The Court declines in its discretion to do so for the reasons it has already explained.

Baqleh may be a unicorn.  As the court pointed out, it was for a very limited purpose and not for review of voluminous ESI.  The video was “confidential” and short, unlike the voluminous discovery materials in many other cases. And, Plaintiff asked the court to do his “homework” for him by specifying the safeguards that the court would impose instead of offering a specific plan.

A.I. protective orders are one of the hottest recent topics in civil and criminal litigation. I have suggested that they are now the standard of care.

I have also echoed Craig Ball’s concerns that equity be considered and that they not become an obstacle to unrepresented or indigent litigants. See  A.I. Protective Orders Are Becoming Routine (Aug. 27, 2026), and  Another A.I. Protective Order – Part 10 (Aug. 21, 2026), both citing Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

Craig’s post also tackles the thorny issue of terminology.  He suggests specific terms that should be avoided in these protective orders. His list of five things that a properly-scoped order should contain is well worth reading. The AI Protective Order Double Standard | Ball in your Court.

For more information, please visit:

Restrictions on Use of Artificial Intelligence Tools. No party, non-party, or other person permitted to receive information designated “Confidential” [or “Confidential—Attorneys’ Eyes Only”] under Paragraph 6 of this Order may input, upload, or submit such information to any artificial intelligence tool, chatbot, generative AI system, large language model, or similar automated platform (“AI”) unless the AI provider is contractually prohibited from both:

(a) using the inputs, or information derived from them, for any purpose other than providing the specific service requested, including using them to train any model or to develop or improve any product or service; and

(b) disclosing the inputs, or any information derived from them to any third party, except where such disclosure is essential to delivering the requested service. Where disclosure to a third party is essential to delivering the requested service, that third party must be bound by obligations no less protective than those required by this paragraph.

Any party seeking to use AI under this paragraph must also confirm that the AI provider will, upon request, delete from its systems all information designated “Confidential.” The party must retain written documentation of the contractual protections required by this paragraph and provide that documentation to the Designating Party or the Court upon request….

Protected Material shall not be submitted to any “Open Generative AI Tool” (e.g., ChatGPT) or any substantially similar tool that is available to or accessible by the public, with or without a subscription or license. Providing Protected Material to any “Open Generative AI Tool” is considered a prohibited disclosure to a third party. The parties may use a closed Generative AI Tool that is private and secured, where there is a contractual agreement providing that the generative AI tool does not retain information beyond any use session, except to the extent retention is reasonably necessary for investigation of abuse violations, system functionality or internal data security operations, provided such information is not used for model training or product improvement purposes and remains subject to the provider’s confidentiality obligations. This provision is not intended to limit use of technology assisted review via qualified data storage persons (i.e., electronic discovery or litigation-support vendors). Any party receiving Protected Material must ensure that the contract, software license, terms of use, or any other agreement or terms for use of the AI tool complies with this Protective Order. [emphasis added].

]]> An ESI Protocol is Not a Shield Against Discovery Obligations – Is There a Duty to “‘Fess Up” – Part III https://www.ediscoveryllc.com/an-esi-protocol-is-not-a-shield-against-discovery-obligations-is-there-a-duty-to-fess-up-part-iii/ Sat, 31 Oct 2026 08:53:46 +0000 https://www.ediscoveryllc.com/?p=5718 […]]]> Plaintiff’s argument that an ESI Protocol limited its discovery obligations was squarely rejected in CR Legal Team, LLP v. Carruthers & Roth, P.A., 2026 WL 3135943 (M.D. N. Car. Oct. 20, 2026). It was insufficient for Plaintiff to confine its search to seven terms provided by Defendant. The search terms provision of the ESI Protocol did not supersede the Plaintiff’s obligations under the Rules.  The duty to produce is nondelegable.  This issue could have been avoided by a clause in the ESI Protocol that is discussed below.

CR Legal is a trademark dispute between two law firms that both use marks that display the letters “CR.” The motion discussed here is defendant’s motion to compel.

In its requests for production of documents, the defendant sought, inter alia, 1) emails and documents regarding the plaintiff’s decision to rebrand from Crumley Roberts to CR Legal Team; 2) the plaintiff’s marketing expenditure by geographic area; and 3) the plaintiff’s agreements with advertising agencies and outlets who assist in promoting the accused CR Legal Team mark.

The court wrote that Plaintiff’s rebranding was a central issue and the Defendant’s discovery went to that issue.

However: “In response to these requests, the plaintiff produced one email thread, which announced the name change, but explained that no other documents exist to the best of their knowledge and based on a reasonable search.” Id. at *4 (cleaned up).

While there were other discovery issues, as related to the ESI Protocol: “The plaintiff only searched for emails that contained the defendant’s provided search terms….”  In making that decision, Plaintiff relied on a Protocol provision that stated:

The parties shall each be permitted a reasonable number of document requests that seek the production of emails containing specific search terms…. In addition, the parties agree to meet and confer on the number of search terms and number of individuals whose email documents are to be searched taking into account the stated rationales of such searches and the proportional need of the searches to the needs of the litigation.

The court wrote that: “The plaintiff argues that this protocol limited email discovery solely to ‘emails containing specific search terms.’” [emphasis in original].  As such, Plaintiff ran only seven search terms, “taking no further steps to produce emails relevant to the discovery request.”

Unsurprisingly, the Defendant disagreed:

[D]efendant argues it “never agreed that Plaintiff’s search and produce obligations were limited to ESI search terms.” …. Instead, the defendant views the ESI Protocol as a tool that works in tandem with broader discovery obligations under the Federal Rules of Civil Procedure.

Defendant had the far stronger position, with the court writing:

The plaintiff’s use of the ESI Protocol as a shield from its discovery obligations misses the forest for the trees. The ESI Protocol does not eliminate the plaintiff’s “affirmative duty [under Rule 34] to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’ ” See Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted); In re Camp Lejeune Water Litigation, No. 7:23-CV-897, 2024 WL 1080988, at *3 (E.D.N.C. Mar. 12, 2024) (holding that an ESI Protocol “complements but does not supersede” Rule 34 obligations). Indeed, “an ESI protocol and search terms work in tandem with the parties’ obligations under the Federal Rules and do not replace a party’s independent obligation to produce electronic (or paper) documents that are reasonably accessible, relevant, and responsive within the meaning of Rule 34.” Raine Grp. LLC v. Reign Capital, LLC, 21-CV-1898 (JPC) (KHP), 2022 WL 538336, at *1 (S.D.N.Y. Feb. 22, 2022). Consequently, a party “cannot justify failing to collect obviously relevant documents on the ground that the relevant employee was not designated as an ‘ESI custodian’ or that such documents might fall outside an agreed search-term workflow.” Wilson Aerospace LLC v. Boeing Co. Inc., No. C23-847-JHC-MLP, 2026 WL 2069870, at *2 (W.D. Wash. July 17, 2026).

The court reasoned:

Here, the ESI Protocol “permits” the parties to request “the production of emails containing specific search terms,” but it does not serve as the sole means of satisfying requests for email production…. Therefore, the plaintiff must not limit its search for responsive emails solely to those that appear when using the defendant’s requested search terms.

Id. at *5-6 (emphasis added).  The court’s order stated:

For the foregoing reasons, the Court orders the plaintiff to produce all relevant documents and communications regarding the first use of the name CR Legal Team, as well as the decision to rebrand, and implementation of the rebrand, from Crumley Roberts to CR Legal Team. The Court further orders that CR’s review for these documents shall include the searches of all email addresses, both professional and personal, that Christopher Roberts and Kimberly Roberts used, and orders that the work emails of all of the plaintiff’s attorneys in Greensboro be searched. These email searches are not limited to the ESI search terms that the defendant requested. Additionally, the Court orders the plaintiff to produce its ESI retention policies, to the extent they exist. Finally, if the plaintiff can produce no additional documents about the rebrand, it must provide the defendant with an attestation, sworn under oath, that no other documents exist regarding the rebrand.

Id. at *6.

I addressed this issue in greater depth in Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  One court wrote: “Defendant had an independent duty to produce key relevant requested discovery even if plaintiff did not specifically list the precise ESI wording or spelling in its list of search terms. Defendant may not delegate to plaintiff the duty to identify its relevant requested documents.” [emphasis added].

In An ESI Protocol Does Not [Necessarily?] Supersede the Discovery Rules (Jul. 25, 2026), I quoted a decision stating: “In matters involving electronically stored information, parties may employ custodian-based collections, agreed search terms, and other tools referenced in their ESI protocol to implement their Rule 34 obligations. But these tools do not narrow or override the Federal Rules.”

In that case, the ESI Protocol stated in part: “Where appropriate, relevant and responsive non-privileged documents and ESI that are easily identifiable and segregable shall be collected and produced without the use of the procedure described herein. The discovery requests (in accordance with and subject to any limits or objections supported by the Federal Rules of Civil Procedure, the Local Rules, and any relevant orders of the Court) shall govern the scope of documents and ESI to be produced, subject to any agreements reached during the parties’ conferral, and otherwise search terms do not supplant discovery requests. The parties shall produce any relevant and responsive, non-privileged documents, to the extent they exist and can be located after a reasonably diligent search of relevant custodians and shared platforms, upon which the parties shall meet and confer.” [emphasis added].

That clause would likely have avoided this dispute.

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Pro Se Prompts Privileged – N.Y. Court followed Morgan and Warner; Distinguished Heppner https://www.ediscoveryllc.com/pro-se-prompts-privileged-n-y-court-followed-morgan-and-warner-distinguished-heppner/ Fri, 30 Oct 2026 17:58:10 +0000 https://www.ediscoveryllc.com/?p=5722 […]]]> A New York court held that an unrepresented litigant’s use of AI was protected work product. It addressed subpoenas directed to OpenAI seeking a pro se litigant’s use of AI.

Unrepresented defendant, John Recchio, challenged Plaintiff’s Amended Subpoena to OpenAI OpCo, LLC, seeking in part:

  1. All prompts, queries, uploaded documents, and corresponding outputs specifically referencing: (a) Plaintiffs Fred Assini or Jason Napolitano; (b) Alpha Tech Lending LLC; (c) the claims or defenses asserted in this action; or (d) filings, motions, or correspondence generated for use in this action” as associated with the accounts registered to defendant Recchio.

Plaintiff argued that the “materials squarely relate to evidence and Recchio’s factual assertions regarding the claims and defenses at issue in this litigation.” Assini v. Hayward, 261 N.Y.S.3d 915, 2026 WL 1677232 (Sup.Ct. Nassau Co. Jun. 4, 2026).  It relied on U.S. v. Heppner, 820 F.Supp.3d 292 (S.D.N.Y. 2026), to support its discovery request.

In response, “defendant Recchio contends that the Subpoena and Amended Subpoena should be quashed, and a protective order issued, as the materials sought are privileged as ‘litigation-preparation.’” He (and/or the court) relied on Morgan v. V2X, Inc., 2026 WL 864223 (D. Col. Mar. 30, 2026), to oppose the discovery.

New York provides fairly standard protections for privilege and work product. Id. at *2-3. Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR § 3101[d]).

The Assini court wrote: “The Morgan Court directly addressed Heppner in its Decision and found that [Heppner] was not binding as Heppner involved a criminal matter and not a civil matter.”

The Assini court added:

The Morgan court further found that, “[h]ere, like in Warner v. Gilbarco, Inc., 820 F.Supp.3d 629 (E.D. Mich. 2026), Plaintiff can assert work product protections in connection with his AI use. It is true that AI systems like ChatGPT, Claude, Gemini, and others widely available to the public, collect user data for training and other purposes. But in this Court’s estimation, that does not eliminate all expectations of privacy or automatically waive protections.” 2026 WL 864223, *5, 2026 U.S. Dist. LEXIS 67939, *10-11 [Dist. Colorado March 30, 2026].

The Court finds the rationale presented in Morgan persuasive.

Accordingly, the Subpoena and Amended Subpoena shall be quashed.

A request to approve settlement was filed on October 8, 2026.

For more information on this topic, please visit:

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

]]> Your Phone and Data Brokers https://www.ediscoveryllc.com/your-phone-and-data-brokers/ Fri, 30 Oct 2026 09:23:29 +0000 https://www.ediscoveryllc.com/?p=5713 […]]]> The Washington Post published M. Scaturro, Your phone knows you’re at the doctor, and data brokers are profiting from it – The Washington Post (Oct. 28, 2026).

The article describes how data brokers use cell phone data, writing: “Chris McQueen finished treatment for leukemia a year and a half ago, but the ads for fake cures never stopped….  Juice cleanses to cure cancer, ‘natural’ cancer treatments, clinics in Mexico promising full recovery with little chemotherapy — all appeared on McQueen’s mobile phone during routine oncologist visits and monthly bloodwork.”

It adds that “many people might not realize that when they are sitting in a hospital, an abortion clinic, or an Alcoholics Anonymous meeting in a church basement, the location data emitted from their mobile phones isn’t covered by the Health Insurance Portability and Accountability Act (HIPAA), which protects patient privacy.”

The article states that there is a call for more States or Congress to ban such tracking. As to the current status, the Post reports:

In January, Consumer Reports released model legislation giving state lawmakers a framework to ban or limit the sale of geolocation data, which uses GPS to identify a person’s movements in real time. Connecticut, Delaware, Maryland, New Jersey, Oregon and Virginia have already banned the sale of precise geolocation data. But digital advertisers have also lobbied states to block such proposed limits.

In response, the data brokers argue that location data itself is not sensitive. Id.  “Advertising trade groups say that targeted advertising saves consumers time and lowers the cost of searching for products, while also allowing websites and apps to offer digital services without paywalls or subscriptions.”

One anti-tracking  solution offered in the article is to limit apps that track data. Another is to put phones in airplane mode when visiting sensitive locations.  “At least 20 states allow their residents to demand that data brokers delete their personal data, but typically consumers must file requests with individual data brokers. California has a centralized portal for requesting such opt-outs, at privacy.ca.gov/drop/.”

The Washington Post article gives step-by-step instructions for iPhones and Android phones.

For more information, please visit:

]]> Court Denies Motion to Prohibit Use of GenAI by Opponents https://www.ediscoveryllc.com/court-denies-motion-to-prohibit-use-of-genai-by-opponents/ Thu, 29 Oct 2026 16:50:56 +0000 https://www.ediscoveryllc.com/?p=5711 […]]]> A court recently addressed Defendants’ Joint Motion for an Order Prohibiting the Use of Generative AI.

Defendants assert that “Plaintiffs’ continued submissions…bear the hallmark content of AI-generated material” and “bear the hallmark style of AI-generated material including in-line header vertical lists…overuse or misuse of boldface type…and links to code or tags in the output text.” … Defendants point out that “in Plaintiffs’ most recent filing – Plaintiffs’ Motion for Leave to File Second Amended Complaint … – Plaintiffs’ submission went so far as to hallucinate a Board policy that simply does not exist.”

The Defendants relied on Fed.R.Civ.P. 11 and the court’s common-law inherent authority to support their motion for  “an order prohibiting the use of artificial intelligence in the preparation of any filings submitted to the Court.”  Boyd v. Beachwood City School Dist. Bd. of Education, 2026 WL 3181031 (N.D. Oh. Oct. 23, 2026).  In the alternative, Defendants sought an order requiring disclosure of the use of A.I.

In opposition, Plaintiffs acknowledged their prior error.  They accepted full responsibility. They further recognized their obligations under Fed.R.Civ.P. 11. They asserted that the error was factual—contents of a defendant’s policy—and not hallucinated cases.  Finally, Plaintiffs assert that “[t]he Court should deny the requested blanket prohibition because Defendants have not shown the type of misconduct that would justify such an extraordinary restriction.”

Defendants replied “by setting forth various examples of fabricated case law, misrepresented holdings, and fictitious quotations that Boyd and Antonio have already submitted to this Court.”  They pointed to 12 hallucinations in one motion.  Defendants argue that “these examples cast significant doubt on Plaintiffs’ assurances that they: (1) verified the factual content of their filings; (2) reviewed the final content; (3) accept responsibility under Rule 11; and (4) checked legal citations and authorities to the best of their ability.”

The Boyd court wrote that it recognized the benefits of the use of AI.  However, it noted that, along with benefits, there comes risk.

The court wrote that, while the principles prohibiting citation of hallucinations apply “equally” to pro se parties: “Artificial intelligence has the potential to serve as an important tool to provide access to the courts for those who cannot afford counsel.” [emphasis added].

It then rejected Defendants motion to ban use of AI:

Because Plaintiffs are subject to Rule 11, the Court will not ban Plaintiffs’ ability to use artificial intelligence in this case. The Court finds that Rule 11 is an appropriate safeguard against the misuse of AI. The Court recognizes that Plaintiffs’ filings cite hallucinated case law and a hallucinated Beachwood City Schools’ policy. To be sure these hallucinated citations are Rule 11 violations, but the Court will not sanction Plaintiffs for this conduct at this time. In their Opposition, Plaintiffs acknowledged that they cited the hallucinated policy and “accept responsibility” for that mistake…. They further “recognize and accept their obligations under Federal Rule of Civil Procedure 11.” … And the Court recognizes that outside of the TRO Motion, Defendants have not asserted that Plaintiffs have cited to any hallucinated case law in any other paper filed with the Court. Given that the hallucinated case law is not relevant to the pending motions before the Court, and Plaintiffs have acknowledged their mistake concerning the hallucinated policy, the Court exercises its discretion to not impose sanctions in this instance, including banning their ability to use AI going forward.

Id. at *5.  The court added: “But the Court expressly warns Plaintiffs that the Court will not hesitate to enforce Rule 11 going forward.” Id. at *6 (emphasis in original).

After a stern warning, the court wrote: “Contemporaneously with this Memorandum Opinion and Order, the Court is referring this matter to Magistrate Judge Armstrong for general pretrial supervision, including overseeing service, conducting a Case Management Conference, overseeing the discovery process, and resolving all non-dispositive motions. Nothing in this Order shall be construed as limiting Magistrate Judge Armstrong’s ability to issue appropriate orders concerning Plaintiffs’ use of AI, including but not limited to prohibiting their use of AI to the extent necessary.”  Id. at n. 4 (emphasis added).

Plaintiffs’ acceptance of responsibility appears to have been important.  One court has stated that once fabricated citations are identified, a two-step process is appropriate. First, a court should consider what verification and inquiry was employed.  Second, candor and correction should be heavily-weighted mitigating factors.  Cite Checking to Find Hallucinated Cases Deemed Insufficient – Part II – Verification and Candor Are Expected (Aug. 17, 2026); Booker v. U.S Bank N.A., __ F. Supp. 3d __, 2026 WL 2254689, at *3-4 (D. Conn. Aug. 5, 2026).

The use of a warning, especially for a first offense, appears to be a trend in addressing hallucinated citations by unrepresented litigants. See Maryland Has Developed a Body of State Law Regarding Hallucinated Citations (Oct. 20, 2026).

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Privilege Logging an Email String or Thread—Is There a Better Mousetrap? https://www.ediscoveryllc.com/privilege-logging-an-email-string-or-thread-is-there-a-better-mousetrap/ Wed, 28 Oct 2026 09:00:40 +0000 https://www.ediscoveryllc.com/?p=5708 […]]]> There are varying schools of thought on how to enter an email string or thread in a privilege log.

The “top email only” approach is less expensive, but may run afoul of the “trust, but verify” purpose of a log. It may obscure detail and hide non-privileged documents.

However, the more expensive document-by-document log may expose protected information by disclosing what facts were communicated to counsel, and that information that is at the core of privilege. In short, while facts are not privileged, what the client communicated to counsel is privileged, absent some exception.

THE MAJORITY RULE

Wallace v. Rocking Horse Children’s Health Ctr., 2026 WL 1801024 (S.D. Oh. Jun. 23, 2026), adopted the majority rule. Plaintiff’s claim was for alleged wrongful termination.

[B]efore, during, and after Plaintiff’s termination––various communications and documents were produced between Rocking Horse and its counsel…. These included numerous email communications, Executive Committee Notes, Personnel Committee Notes, and a Draft Separation Agreement…. As identified in their privilege log, Defendant claims that all of these communications and documents are protected from discovery because of attorney-client privilege or work product doctrine.

Specifically, Rocking Horse asserted that 70 pages of email were protected as “direct communications with counsel that clearly fall within the scope of attorney-client privilege.” It asserted that other documents were work product.

Ms. Wallace disagreed and asserted that Rocking Horse’s privilege log was defective.  In this federal question case, federal law governed privilege and work product.  The court wrote that the general principle under Fed.R.Civ.P. 26(b)(5) is that a privilege log “must contain sufficient factual content to allow the court to reach the conclusion that each element of the privilege is fulfilled.”

The court ordered an updated privilege log, writing: “Defendant’s clustering of email strings logged under a singular claim of privilege makes it near impossible to decipher how and to what extent the asserted privileges apply.”  It wrote:

Whether or not emails within a string are required to be logged separately is a developing issue in case law, with courts coming to different conclusions. Compare United States v. Davita, Inc., 301 F.R.D. 676, 685 (N.D. Georgia 2014) (requiring that “each withheld email within a string be logged in some fashion at least once.”) with Muro v. Target Corp., 250 F.R.D. 350, 363 (N.D. Ill. 2007) (declining to adopt the view that each email within a string be separately logged).

Wallace wrote that the Sixth Circuit had not decided the issue; however, “the majority view is that individual emails within a string should be separately logged in some fashion.” Id. at *4 (quotation and string citation omitted).  Wallace then adopted that viewpoint, adding: “Logging the details of only the ultimate, top, email would not accurately state how many separate communications are included in the withheld document, and who received which of those communications. Such an approach may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of privilege.” Id. (citation omitted).

The Wallace court explained:

In the present case, one of the first entries in Defendant’s privilege log––identified as Bates No. RH000255-74––illustrates the issue with logging a string of email communications under a singular claim of privilege…. As evidenced by the numbering system– –that is, 000255-74––this singular entry contains nearly twenty pages of email communications.… Moreover, it lists the document type as “Multiple email communications”; it lists five different dates spanning the course of fourteen days; and it lists seven different authors and seven different recipients, many of whom are non-attorneys…. Finally, it asserts the protection of attorney-client privilege and the work product doctrine with the following reason: “Counsel actively communicating with Rocking Horse Board Members and HR Director, rendering legal analysis and advice and answering questions to develop strategies related to Plaintiff’s pre-suit claims, possible early resolution as well as Plaintiff’s employment with Rocking Horse.”

Id. at *4.  The court found it “unclear that this reasoning applies to nearly twenty pages of email communications when there are multiple non-attorneys listed as authors and recipients, and the communications span a period of fourteen days.”  Id. at *5.

The court ordered an updated privilege log, adding that “Defendant is not required to log an email multiple times if it appears more than once in an email string…. Rather, it is merely required that each withheld email within a string be logged in some fashion at least once.” Id. (cleaned up).

IS THE MAJORITY RULE CORRECT?

For a different resolution, see “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. (Aug. 8, 2024).  There, under the “part and parcel principle,” attachments to a privileged email may be withheld even if they are not privileged. In Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981), the Court wrote that “[a] fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his [or her] knowledge merely because he [or she] incorporated a statement of such fact into his [or her] communication to his [or her] attorney.”  [citation omitted; emphasis added].

IS THERE A BETTER MOUSETRAP?

In light of that, there may be a better mousetrap.  One option might be a certification log. Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log”.  A privilege log could identify only the top email if it were accompanied by a certification that every non-privileged attachment had been or would be separately produced.  The certification could also state how many attachments were not being produced because they were independently privileged.  The certification could state that counsel had reviewed the withheld attachments and there was a good faith basis for withholding them.  Further, it could state that the withheld, but not logged, documents had been reviewed for waiver by disclosure and that the privilege was not waived. The certification might even be accompanied by a categorical log providing some additional details about the withheld attachments. Categorical Privilege Logs Are Not Disfavored (Apr. 10, 2026).  Fed.R.Civ.P. 29 permits stipulations as to discovery procedures.  Fed.R.Civ.P. 26(f) requires development of a discovery plan.

The Sedona Conference suggests cooperation to prevent an issue from arising.  Commentary-on-Privilege-Logs-May-2024.pdf (thesedonaconference.org), 25 Sedona Conf. J. 221, 266, passim (May 2024 version):

For more on “what is a document” in the digital age, please visit What is a Document?

For more on privilege logs, see Search Results for “”privilege log”” – E-Discovery LLC

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Contested Motion for AI Protective Order Was Granted https://www.ediscoveryllc.com/contested-motion-for-ai-protective-order-was-granted/ Mon, 26 Oct 2026 08:37:10 +0000 https://www.ediscoveryllc.com/?p=5703 […]]]> “This is an action by Fischman, proceeding pro se against Epic, asserting claims arising from the alleged role of Epic’s medical software in the death of her father. Fischman has served extensive discovery requests that seek, among other things, the software’s design, development, and implementation.”  Fischman v. Epic Systems, Corp. 2026 WL 3182476 (N.D. Tex. Oct. 23, 2026).

The parties differing positions were:

  • “Epic now moves for a protective order, contending that documents responsive to these requests contain confidential information and trade secrets.”
  • “In response to Epic’s motion, Fischman initially agreed to the entry of some form of a protective order. She now posits, however, that her ‘preferred course is for discovery to proceed … without a separate protective order.’”

The court wrote that it deemed Epic’s request to be opposed.  It held that Epic made the factual showing required by Fed.R.Civ.P. 26(c).

As to AI, Epic’s proposal had two features:

  • “It prevents the input of confidential and highly confidential information into an AI tool unless that tool is contractually prohibited from … storing or using the inputs to train or improve any model and prohibited from disclosing the inputs to any third party.” [cleaned up]; and,
  • It “shall not be construed to limit the use of artificial intelligence for legal research, drafting, organization, or other litigation tasks that do not entail the input of Protected Material.” [cleaned up].

The Fischman court wrote:

As to the provisions restricting the use of AI, Epic maintains that the entry of information into generic AI tools is “effectively irreversible” because these models “commonly retain the text and files that users submit and use those submissions to train and improve the … models.” …. Epic also cites ample authorities that show that courts across the country impose protective orders tailored to address the problems that modern AI tools pose. See, e.g., Morgan v. V2X, Inc., 2026 WL 864223, at *7 (D. Colo. Mar. 30, 2026) (imposing nearly the same restriction at issue here). Given Fischman’s acknowledged use of AI in this litigation, … the court finds that there is good cause to impose Epic’s proposed AI restrictions in the protective order.

The posts A Unique A.I. Protective Order (Oct. 9, 2026), and Three More A.I. Protective Orders (Oct 9, 2026), provide multiple additional examples

]]> Security Breach Highlights Danger of Shadow A.I. https://www.ediscoveryllc.com/security-breach-highlights-danger-of-shadow-a-i/ Sun, 25 Oct 2026 18:38:58 +0000 https://www.ediscoveryllc.com/?p=5701 […]]]> “Thousands of Baltimore patients may have had their personal health information exposed after a worker uploaded a spreadsheet to a third-party public artificial intelligence tool that the hospital had not approved.”  Bridget Byrne, Data breach: Johns Hopkins Bayview Medical Center alerts patients (Oct. 25, 2026).

The article reports that the breach, caused by employee error, impacted 3,282 patients.  “The spreadsheet in question included patient names, dates of admission, medical record numbers, account numbers, departments of service, medications administered and provider names. It did not include Social Security numbers or financial account information.”

Further, it reports:

The hospital said it had the employee delete the initial AI prompt and thread from the AI tool’s history and reached out to the company that owns and operates the tool to request deletion.

The hospital system said they are taking restrict unauthorized applications and artificial intelligence tools and educating its employees about the tools.

AI policies should address the use of shadow artificial intelligence.

]]> Insurer’s Denial of Coverage for Litigation Costs During Doc Review Justifies Late Assertion of Privilege https://www.ediscoveryllc.com/insurers-denial-of-coverage-for-litigation-costs-during-doc-review-justifies-late-assertion-of-privilege/ Sat, 24 Oct 2026 09:12:59 +0000 https://www.ediscoveryllc.com/?p=5684 […]]]> Defendants failed to timely assert privilege.  Plaintiff claimed waiver. However, because Defendants’ insurance company denied coverage of litigation costs at the time when review of 700,000 documents was to commence, a court held that privilege was not waived by the failure to make a timely objection. Instead, the court ordered production of a privilege log.

“As to attorney-client privilege, although any assertion of the privilege as to a particular document would be untimely under Fed. R. Civ. P. 34(b) at this time, the Court may not find a ‘per se waiver’ due to an untimely assertion of the attorney-client privilege, but instead must consider any possible waiver on a case-by case basis, considering the following factors….”  Experian Information Solutions, Inc. v. Stein Saks, PLLC, 2026 WL 3096179 (C.D. Cal. Sep. 28, 2026).  Those factors are:

The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy … or unusually hard.

The Experian Information court found that the first two factors favored waiver.

However, last two factors did not. Here there were “more than 700,000 documents with search term ‘hits’ that would take a team of 100-150 attorneys two weeks to review….”

Further, the court found that the “particular circumstances of the litigation … make responding … unusually hard….”  Defendants’ insurer disclaimed insurance coverage for litigation costs “just as the review for responsiveness of the more than 700,000 documents, including privilege review, was to commence….”

The court held: “On balance, the Court finds on the unique facts here, a waiver of the attorney-client privilege is not warranted based on Defendants’ failure to timely provide a privilege log or otherwise timely assert document-specific privilege objections at this time.”

However, the court ordered Defendants to produce “a compliant, document-specific privilege log that must include all necessary information to support a claim of the attorney-client privilege, including, as appropriate, the drafter/sender of each such ‘document’ (as used herein including electronically stored information), all recipient(s) (including titles and, if an attorney is identified, a statement of whom the attorney represents), a description of the subject matter of the document sufficient to support the claim of privilege but without revealing the information itself that is claimed to be privileged, and the date of the document and/or the date it was shared,” within 14 days.

There are ways to negotiate cost-saving privilege logs.  Privilege Logs:  New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024).

If a review platform is being used, it may be possible to create a metadata privilege log.  How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024).

While some courts view the issue as one of “waiver,” others describe it as a failure to carry the burden of proving privilege. Inadequate Privilege Log Fails to Meet Burden of Proof; Waiver Doctrine Does Not Apply (Jan. 21, 2026).

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Improper Reliance on A.I. + Failure to Use Litigation Support Experts + Lack of Transparency = Failure to Comply With “Meet & Confer” Order https://www.ediscoveryllc.com/improper-reliance-on-a-i-failure-to-use-litigation-support-experts-lack-of-transparency-failure-to-comply-with-meet-confer-order/ Fri, 23 Oct 2026 08:55:46 +0000 https://www.ediscoveryllc.com/?p=5699 […]]]> After a hearing, the Lighthouse court “issued an interim Order compelling the parties to meet and confer, and to retain an independent third-party electronically stored information (‘ESI’) specialist to assist the parties to effectuate the Court’s previous Order.” They failed to comply. Lighthouse Healthcare Center, LLC v. Nat’l. Fire & Marine Ins., 2026 WL 314898 (C.D. Cal. Oct. 20, 2026).

What happened? The parties retained litigation support specialists, but only for the initial meeting. Defendant informed Plaintiff of issues with AI searches; however, the parties did not discuss them with experts. Defendant also developed its own protocols without input from Plaintiff.  This did not comply with the July Order.  On these facts, Plaintiff was not permitted to rely solely on AI. Defendant should have been more transparent. The court order a “do over” with a neutral expert.

The Lighthouse court explained its July order: “The parties were ordered to ‘meet and confer and develop ESI protocols for searching for responsive documents in both OASIS and OnBase databases.’ … The parties were further ordered to ‘each engage a litigation support specialist to participate in the meet and confer process to discuss what information can be extracted from Defendants’ databases, what can be searched, the methodology of the data extraction, how the information should ultimately be produced, and other issues unique to the type of data. The litigation support specialist is to participate in the meet and confer to assess what information can be extracted/downloaded from Defendants’ systems, explore what ‘monitor and adjust’ functions encompass, and develop protocols for downloading the information into useable formats to comply with this Court’s Order from both systems identified by the Defendants.”  Id. at *1 (emphasis added).

The Lighthouse court explained the failure to comply:  “At the hearing, the parties acknowledged that while each party retained either an internal or external litigation support specialist, their participation was limited to the initial meet and confer session. The parties admit that the litigation support specialists were not involved after that initial meeting and did not participate in the meet and confer to “develop protocols for downloading the information into useable formats to comply with this Court’s Order from both systems identified by the Defendants.” …  Both litigation support specialists retained by the parties did not meaningfully engage in providing guidance and direction to the parties as outlined in the July Order. Rather, their roles were limited. Defendants’ in-house litigation support specialist, Mr. Bell, was instructed by Defendants’ counsel, Mr. Levy. … His declaration does not address his involvement resolving the problems with the dataset nor did he discuss developing a methodology. Equally, Plaintiff’s litigation support expert, Mr. Stephen, was involved in a limited capacity in identifying artificial intelligence (‘AI’) search terms. Ultimately, the parties failed to meet and confer to resolve the many issues resulting from the use of Plaintiff’s AI tool. While Defendants did inform Plaintiff of the problems with the AI generated searches, the parties failed to meet and confer to resolve the issues as set forth in the July Order. For example, Defendants state that with respect to OnBase “Ops No Coverage” files, 8,140 records could not be reliably searched.” … More troubling was Defendants’ representation that “a small number of files were too large to include in the aiR assist dataset or were reported as errors by aiR Assist. Excluding those files reduced the AI-reviewable dataset to 57,631 records.” … It appears Plaintiff was ultimately told about the problems, but the parties did not engage in discussions to agree on how to handle the problems with the files, nor were the litigation support specialists engaged to assist the parties in finding a mutually acceptable resolution. Instead, Defendants proceeded to develop protocols without input from the Plaintiff. This does not comply with the July Order.”  Id. at *2 (emphasis added).

Next, the court explained each party’s shortcomings:

The July Order contemplated that the parties, with guidance from the litigation support specialists, meaningfully meet and confer to resolve the issues involving the dataset. That did not happen. While Defendants did undertake an extensive review of the records, they were not transparent about their ad-hoc modifications, and did not meaningfully engage with Plaintiff to develop a methodology on extracting the data in question, and to address the issues arising from the dataset which is contemplated when developing ESI protocols in the July Order.

Additionally, Plaintiff cannot rely solely on AI since the production must be tailored to the parameters set by the Court. Plaintiff did not provide input or engage Mr. Stephen to propose a solution to the problems identified by the Defendants in using Plaintiff’s AI and search terms. AI is but a tool and not a substitute for what the Court Ordered. Defendant did attempt to comply with the Court’s Orders.

Id. at *3 (emphasis added).

The Lighthouse court then explained what it had ordered: “Defendants should have been more transparent and engaged with Plaintiff in developing the overall protocols. The parties should have meaningfully engaged in discussions to fully develop ESI protocols. While there was agreement on the initial search terms and the use of AI tools recommended by the Plaintiff, the July Order specifically ordered the parties to meet and confer to develop an overall methodology on the data extraction and come to a consensus and agreement on methods for extracting information from the Oasis and OnBase databases. The ESI specialists were not involved in advising the parties as to a solution to their ESI discovery limitations but rather took limited roles in the development of ESI protocols.” Id. at *3.

Finally, the court reaffirmed its July Order for the parties to meet, confer, and “hire a third-party neutral ESI expert” to assist in compliance. “The Defendants are to be transparent on the methodology undertaken thus far and come to a consensus with Plaintiff in an effort toward resolution of the problems outlined in Defendants’ Opposition. The ESI expert shall be given access to the databases in question and provide assistance to the parties to develop comprehensive protocols, address the problems outlined in Defendants’ Opposition, and to ultimately ensure Defendants’ production of documents in compliance with this Order and the July Order.” Id. at *3.

For another decision denying a request to use artificial intelligence, see Meta Stipulated for Special Master Privilege Review After Denial of Request for A.I. Review (Oct. 22, 2026).

This blog was initially posted on  Electronic Discovery Reference Model.

]]>