[Attorney Nathan] Charles sued [Judge Louis] Leibowitz last October after the judge, who presided over some proceedings in his divorce, twice sanctioned him and warned him to control his anger after he threatened to sue a loan officer. Charles argued the orders and warnings violated his rights to free speech and due process because he hadn’t committed misconduct.

Leibowitz ordered him to pay $23,680 in attorneys’ fees to his ex-wife for his appeal of another judge’s custody order, as well as $1,222 as a sanction for a contempt petition Charles had filed. The judge later withdrew the fine, and Charles withdrew the contempt petition.

Id.  The article states that Mr. Charles sought leave to add five circuit court and three Appellate Court judges.

[U.S. Magistrate Judge Timothy] Sullivan recommended that the case be dismissed and that Charles not be allowed to amend his complaint [because amendment was futile]. He wrote that the lawsuit clearly ran afoul of the Rooker-Feldman doctrine, which prevents “state-court losers” from asking federal judges to review and reject judgments with which they disagree. He was not persuaded that the complaint raised legitimate constitutional issues that were separate from the divorce case.

“During this case, the Plaintiff has endeavored to frame his case as one that involves independent and separate issues from that of the state court divorce and custody proceedings,” Sullivan wrote.

“Yet it is apparent from his Complaint that he is asking this Court to review the sanctions orders, find them unconstitutional, and enjoin Judge Leibowitz from imposing any similar orders in the future.”

The Daily Record reports: “This is his second lawsuit against a judge arising from the divorce case; the first was against Montgomery County Circuit Judge Christopher Fogleman. Charles voluntarily dismissed that case shortly after he sued Leibowitz.”

The decision is Charles v. Hon. Louis M. Leibowitz, 2026 WL 2279325, at *1 (D. Md. Aug. 7, 2026).  “Before Judge Leibowitz issued the sanctions, he warned that if Plaintiff continued to maintain an angry attitude and instigate additional issues (like threatening a loan officer that he would sue her), making the case more difficult and heightening the existing tension in the case, then Plaintiff would be forced to pay attorney’s fees.” Id. at *1.

Mr. Charles’ demand for relief was: “a. Issue a declaratory judgment that sanctions imposed against Plaintiff based on his speech violate the First and Fourteenth Amendments; b. Enter a preliminary and permanent injunction prohibiting Defendant from imposing attorney’s fees sanctions against Plaintiff based on the content or tone of his communications, filings, or criticisms,” and for costs. Id. at *2.

The federal Court wrote: “For the reasons set forth below, I recommend that the Motion be granted because the Court lacks subject matter jurisdiction. The Court need not reach the issue of whether Plaintiff has properly stated a claim under Rule 12(b)(6).”  Id. at *2.  “The Supreme Court has consistently held firm to these principles, creating what has become known as the Rooker-Feldman doctrine and making it clear that federal district courts lack subject matter jurisdiction to review state court judgments.”  Id. at *3.

In Shaw v. Foreman, No. 24-7015, 2026 WL 159766 (4th Cir. June 4, 2026), the Fourth Circuit recently held that when the evidence at issue in a motion for sanctions based on spoliation is significant to the merits of an issue, a district court may abuse its discretion “by granting summary judgment without considering the sanctions motion.” Id. at *3. In light of Shaw, the Court herein considers the Plaintiff’s motions for sanctions based on spoliation before proceeding to consider the Defendant’s motion for summary judgment. [italics added].

On the facts, however, both sanctions motions were denied. Therefore, the court wrote: “Because the Court will deny both of the Plaintiff’s motions for sanctions, the Court further concludes that neither motion poses an obstacle to disposition of the Defendant’s motion for summary judgment.”  Summary judgment was then granted.

The cited Fourth Circuit decision, Shaw, was an action by a prisoner against prison officials.

Plaintiff brings procedural due process claims and First Amendment retaliation claims against prison officials. While incarcerated, Plaintiff was accused of an indecent exposure offense. He claimed his innocence and repeatedly insisted that officials view allegedly exculpatory video footage. Officials repeatedly refused to watch this footage and ultimately convicted him of the offense. Despite Plaintiff’s request to preserve the footage, Defendants failed to do so. During litigation, Plaintiff moved for spoliation sanctions.

177 Fed.4^th at 552 (emphasis added). Mr. Shaw contended that the video would show that he was at a different location at the time of the offense.  He said it would show him in a stairwell and the incident occurred in a bathroom. Defendants did not view the video, asserting it was of poor quality and that it would not have “aided” Mr. Shaw.

In a prior appeal, the Fourth Circuit described the video as at the “core” of Shaw’s “theory of vindication.”  On remand, it “came to light” in discovery that Defendants had not preserved it. Id. at 553.

However, on remand: “The district court granted summary judgment in favor of Defendants while the sanctions motion was still pending before the magistrate judge.” Id. The Fourth Circuit vacated that second decision and remanded with instructions to consider the sanctions motion. The Fourth Circuit wrote:

Critically, however, the district court never addressed the motion for sanctions on the spoliation of the video footage. On that basis, we must vacate the summary judgment decision and remand this case for a full consideration of the sanctions motion….  We cannot construe the absence of discussion as a sound and deliberate decision that the sanctions motion has no effect on the outcome of the case. We—and the available evidence—have made clear that the video footage is central to the merits. In our 2023 opinion remanding this case, we stated that the footage “would likely bear profound consequences on the claims in dispute.” … We even noted that the prison officials’ failure to produce the video was “profoundly powerful circumstantial evidence that perhaps they did retaliate.” … We did so because the record reflects a repeated, urgent insistence by Mr. Shaw to review the footage, met with a repeated, deliberate refusal by the Defendants to do so. Mr. Shaw asked numerous individuals to review the evidence in the months leading up to his [prison disciplinary] hearing, filed a Request for Documentary Evidence, filed an emergency grievance pleading for someone to review the footage, filed two informal complaints asking for a review of the footage, and wrote letters to the Offender Discipline  Unit (which may never have been delivered by Defendants). When all failed, Mr. Shaw asked for the footage to be preserved for review in litigation. But Defendants have failed to do even that much.

Despite Defendant’s argument that the footage is inconsequential, the record reflects that the contents were in fact crucial to Mr. Shaw’s case. Put simply, Mr. Shaw could not have been properly transferred to Red Onion if the footage contents were exculpatory.

The appellate court added that “the bottom line is that the video footage was crucial to the merits of the case. The magistrate judge accordingly called for both a hearing and supplemental briefing on spoliation sanctions. While most motions for sanctions are non-dispositive pretrial matters, in some situations, the nature of the sanction imposed is so severe that the sanction is functionally dispositive or results in an adverse inference that may subsequently defeat summary judgment.”  Id. at 555 (emphasis added).

In sum: “Even if the criteria for dispositive sanctions are not met in this case, the significance of the footage—emphasized by our prior opinion and highlighted by the available evidence—warranted, at minimum, a complete consideration of the sanctions motion.”  Id.  It was held to be an abuse of discretion to grant summary judgment “without considering the sanctions motion.”  Id.

This blog was initially posted on  Electronic Discovery Reference Model.

Paragraph 1 states that, under Fed.R.Civ.P. 11, when an attorney or unrepresented party signs a pleading, written motion, or other paper, they are certifying that the legal positions are warranted by existing law and the factual representations have evidentiary support.  However, it also states that “[d]espite this clear directive,” there have been filings that rely on GenAI but “include non-existent case citations, fake quotations, and unsupported factual assertions.”

Paragraph 2 provides a caution that the submitting filer “must verify the accuracy of all filings prior to submission, and especially when relying on AI.”  It states that filings that include “fake or hallucinated citations, quotations, or representations may be subject to Rule 11 sanctions….”  Those sanctions may include “striking the filing, imposing filing restrictions, monetary sanctions, dismissal of a party’s case, and any other sanction deemed appropriate by the presiding judge.”  The Standing Order cites Fed.R.Civ.P. 11(c).

The Standing Order states: “The presiding judge may also refer any attorney authorized to practice in this Court to the Court’s Disciplinary and Admissions Committee to investigate and recommend appropriate discipline for related violations of the applicable rules of professional conduct.”

Plaintiff in a copyright infringement action moved to compel discovery under Fed.R.Civ.P. 37. The court wrote that: Under Rule 37(a)(1), a “motion to compel ‘must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.’”

The purpose of the requirement is clear:

Rule 37’s conference requirements encourage resolving discovery disputes without judicial involvement. Failure to confer or attempt to confer may result in unnecessary motions. When the court must resolve a dispute that the parties themselves could have resolved, it must needlessly expend resources that it could better utilize elsewhere. The conference requirements are no “empty formality.”

Id. at *10 (cleaned up).

Frequently, the failure of a movant to “meet and confer” results in a denial without prejudice of the discovery motion.

In Sadeghpour, however, it resulted in the denial of attorneys fees.  Plaintiff’s motion to compel was granted in part and denied in part. The court wrote:

The failure to engage in a proper meet and confer before filing a motion to compel constitutes sufficient reason in itself to deny a Rule 37 motion and/or any fees and costs associated with same.

Given the apparent failure to engage in a fulsome meet and confer, the undersigned finds that other circumstances make an award of expenses unjust.

Id. at * 10 (emphasis added).

One defendant “asks to delay this motion until after resolution of the pending motion to dismiss. This request is effectively a request to stay discovery.”  Sadeghpour v. Nakamoto, 2026 WL 2267345 (E.D. La. Aug. 6, 2026).

The court wrote that:

[N]o federal or local rule, statute, or binding case law automatically stays discovery pending a ruling on a motion to dismiss. Nor is a stay of discovery permitted merely because defendant believes it will prevail on its motion to dismiss: “[H]ad the Federal Rules contemplated that a motion to dismiss under FED. R. CIV. P. 12(b)(6) would stay discovery, the Rules would contain a provision to that effect.”

It added: “As a matter of federal procedure, the request to stay discovery is considered a motion for protective order under Rule 26(c)(1)(A)-(B).” [emphasis added].

That holding is important because it sets the governing “good cause” standard: “Good cause may exist when the party from whom discovery is sought shows that it would suffer ‘annoyance, embarrassment, oppression or undue burden or expensive’ [sic] absent a stay. Courts are accorded the discretion to stay discovery where the disposition of a motion to dismiss might preclude the need for discovery entirely.”

However, there must be a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.”  Therefore: “In determining whether a stay of discovery is appropriate, courts are to balance any harm produced by a stay against the possibility that a motion to dismiss would be granted and eliminate the need for any discovery.”

Further: “A stay of discovery while dispositive motions are pending is more the exception than the rule. Although the exception, courts have issued protective orders to stay discovery pending disposition of a motion to dismiss and/or motion for summary judgment when the party seeking such protection proves its necessity, such as when the dispositive motion raises a purely legal issue. But a stay of discovery is not appropriate when it could prevent a party from having a sufficient opportunity to develop a factual basis to defend against the dispositive motion.”

On the facts presented: “Nakamoto has failed to particularly and specifically demonstrate good cause as necessary to establish that a protective order staying discovery is appropriate in this case. Accordingly, the request to delay resolution of this motion [to compel discovery] until after a decision on the pending motion to dismiss is denied.”

For additional information, please see:

• Request for Expedited Discovery Granted; Motion to Stay Discovery Denied (May 28, 2026)(“courts in this district have followed two guiding principles when examining discovery stays: (1) as a general rule, courts have not been inclined to grant such motions; and (2) courts have imposed a ‘high bar’ where a stay of discovery may be appropriate ‘only in special circumstances,’ where the motion to dismiss is based on qualified or absolute immunity, or lack of jurisdiction.”);
• Motion to Dismiss Does Not Stay Discovery (Nov. 8, 2025)(“Federal Rule of Civil Procedure 26(c) states ‘[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). Defendants, as the parties seeking a stay of all discovery, bear the burden of showing good cause for such a protective order.”);
• Should Discovery be Stayed Pending Ruling on Dispositive Motion?(Apr. 3, 2025)(court applied “a two-part test to determine if delaying discovery is appropriate: (1) whether the pending motion is potentially dispositive of the case, or at least would render unnecessary the discovery at issue; and (2) the pending motion can be decided absent additional discovery.”);
• Discretionary Stay of Discovery Pending Decision on Dispositive Motion(Mar. 13, 2025)(“In this Circuit, district courts assess the following considerations when determining whether a stay is appropriate: ‘(1) the interests of judicial economy; (2) hardship and equity to the moving party if the action is not stayed; [and,] (3) potential prejudice to the non-moving party.’” [citations omitted]).

The issue before the court arose out of the developer’s motion to compel. Blue Moon made an interesting challenge to privilege based on a disclosure to the condominium’s management agent.

This blog, however, addresses the search methodology issue and Blue Moon’s assertion that Trailsedge must search all current and former unit owners’ email and text messages.  Trailsedge Owners Ass’n., Inc. v. NED Ski Associates, LLC, 2026 WL 2083546 (D. Vt. Jul. 16, 2026).

While the court rejected defendants’ untimely demand to use their search terms, it found gaps in plaintiff’s keywords and ordered broad disclosure.  The court rejected defendants’ demand to search the ESI of all current and former unit owners over more than a decade.  However, based on certain statements of plaintiff, it found that plaintiff had opened the door to additional unit owner disclosure, which was ordered by the court.

SEARCH METHODLOLGY

In my opinion, both parties were at fault when it came to search terms.  Trailsedge decided on its keywords, unilaterally and without consultation.  However, “Trailsedge argues that Blue Moon … never asked to negotiate search terms, and failed to propose its own terms until approximately two years later.”  Id. at *3.

But, “[i]n reply, Blue Moon denies it acquiesced to Trailsedge’s unilateral search process, arguing it did not know Trailsedge had used keyword search terms until many months after the discovery production and was entitled to assume Trailsedge had produced all responsive materials…. Blue Moon also argues that the scope of the requested search is proportional because Trailsedge seeks damages exceeding $10 million for alleged defects dating back to the period when the buildings were constructed and occupied while refusing to identify the date range, custodians, and results of its searches.”  Id. at *4.

The court looked to the Sedona Conference, id. at *4, passim, and  Judge Peck’s decision in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), writing that “when a party uses keyword searches to identify responsive ESI, the search process must be cooperative, well-informed, capable of explanation, and sufficiently transparent to permit the opposing party and the court to evaluate it if challenged.”  It wrote that cooperation and proportionality are the dominant drivers. “As Gross explained, keyword searches must be developed with input from custodians who know the terminology used in the relevant communications and must be tested to ensure accurate retrieval and reduce false positives.” Id. at *5.

The Trailsedge court continued:  “Applying the principles described above to this case, the court first rejects Blue Moon’s request to impose its proposed keyword search” on Trailsedge.  Id. at *5.  It found that those terms may be overbroad, redundant, “or likely to generate excessive false positives.”  Further, Blue Moon was untimely:

Sedona’s principles do not give a party license to wait until late in discovery and then demand a wholesale redo of its opposing party’s collection process using its preferred terms….  Trailsedge also notes that Blue Moon did not request search-term information or propose its own search terms until approximately two years later…. The timing and proportionality considerations weigh against granting Blue Moon’s request in full.

Id. at *5.

However, Trailsedge was not off the hook with its unilateral selection of keywords. It wrote that: “The court… also rejects Trailsedge’s argument that Blue Moon’s delay ends the inquiry. Trailsedge chose to use keyword searches as part of its collection process, and the reasonableness of that process became a fair subject of discovery once it was challenged.” Id. at *6.

Again citing Sedona and Judge Peck, the Trailsedge court noted “the more basic principle that counsel must understand, supervise, and be able to describe the search process used to identify responsive ESI in enough detail to assess its adequacy.” Id. at *6.  Finding “apparent gaps” in the terms designed unilaterally by Trailsedge, the court wrote:

Trailsedge has not met its obligation to provide enough information to permit a meaningful assessment of whether the searches were reasonable and proportional. The record does not show that Trailsedge has identified the custodians searched, the date ranges applied, the dates the searches were conducted, the terms used for each custodian or source, or the results returned by each term….  Trailsedge must therefore provide additional information about its search methodology.

Id. at *6.  It added that Trailsedge’s  “omission of central party names and words related to critical legal issues raises a sufficient question about the adequacy of Trailsedge’s prior search sufficient to warrant additional discovery.”  Id.

Accordingly, within fourteen days, Trailsedge shall serve on Defendants a written description of its prior ESI search methodology. That description shall identify: (1) each custodian whose emails, text messages, or other ESI were searched; (2) each data source searched; (3) the date range applied to each search; (4) the date on which each search was performed; (5) the search terms used for each custodian or source; and (6) the number of hits returned by each term (to the extent reasonably available). Trailsedge shall also state whether custodians were instructed to use particular search terms, whether custodians self-selected additional terms, and what steps counsel took to supervise or validate the searches.

Id. at *6.  This was to be followed by a court-ordered “meet and confer.” Id.; see generally, the Hon. Paul W. Grimm (ret.), Michael D. Berman, et al., “Discovery about Discovery: Does the Attorney Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information,” 37 U. Balt. L. Rev. 413 (2008).

SEARCHES OF EVERY CURRENT AND FORMER UNIT OWNER

The court explained the unit owner issue as follows:

Blue Moon seeks an order requiring Trailsedge to collect and produce responsive documents from all current and former unit owners for the period of January 1, 2011 through May 12, 2023…. Blue Moon argues Trailsedge was required to search all unit owners’ files because Trailsedge “is suing on behalf of all unit owners” and because Trailsedge’s initial disclosures allegedly identified members, not just Board members, as persons likely to have discoverable information.

Id. at *7. “Trailsedge responds that the Association is a Vermont nonprofit corporation distinct from its members and that the unit owners are not parties or custodians of Association records merely because they own units…. Trailsedge further argues that, except in limited governance matters, the Association acts through its executive board under the Vermont Nonprofit Corporation Act and that the Association’s statutory authority to litigate in its own name on behalf of itself or unit owners does not collapse the distinction between the Association and its members….  Trailsedge also argues that the request is disproportionate because Trailsedge consists of twenty-four units that have been bought and sold over the years by an unknown number of owners and Blue Moon seeks documents from January 1, 2011 through May 12, 2023.”  Id. (emphasis added).

The court resolved the issue by applying the “possession, custody, and control” and proportionality  standard of Fed.R.Civ.P. 34.  “In the District of Vermont, ‘control’ is construed broadly and is not limited to legal ownership or actual physical possession; documents may be within a party’s control when the party has the ‘right, authority, or practical ability’ to obtain them.”  Id. at *7.

It held that Blue Moon had the burden of proving control by Trailsedge and failed to carry it: “The record also does not support treating all unit owners as custodians simply because some unit owners may possess relevant information. Rule 34 control requires more than relevance.”  Id. at *7.  The court noted that the Sedona conference calls for “caution” in evaluating information in the possession of non-parties.

Although the [Sedona Conference] Commentary’s recommended “legal right” standard is narrower than the “practical ability” standard applied by district courts in the Second Circuit, it identifies generally applicable practical and fairness concerns implicated when discovery obligations are extended to ESI held by third parties. The Commentary explains that an expansive approach may require parties to preserve, search, and produce documents they do not actually possess and may not have the ability or legal right to obtain…. That concern is present here. Blue Moon has shown that unit-owner communications may be relevant, but it has not shown that Trailsedge has actual possession, legal authority, or a practical ability to obtain every current and former unit owner’s personal emails and text messages on demand.

Id. at *7 (emphasis added).  The court also evaluated proportionality: “The documents Blue Moon seeks may be relevant to notice, knowledge, and statute-of-limitations issues. Blue Moon’s requested owner-wide search, however, would encompass more than twelve years, cover all current and former owners of twenty-four units, and include potentially sensitive personal texts and emails.”  Id. at *8.

However, Trailsedge was not off the hook. Its discovery responses “reasonably could have led Blue Moon to believe that at least some non-Board Association members had supplied documents or information.” Id. at *8.  In my words, Trailsedge opened the door.  Therefore:

In light of the ambiguity created by Trailsedge’s interrogatory responses, however, the court finds the responses require clarification. Rule 26(g) requires Trailsedge’s discovery responses to be formed after a reasonable inquiry, and Rule 26(e) requires supplementation if the responses were materially incomplete or incorrect. Fed. R. Civ. P. 26(e), (g). Because Trailsedge’s responses suggest that some member-produced materials were considered but do not identify which members provided documents, what sources were searched, or whether any non-Board member communications were requested or reviewed, Trailsedge must clarify those issues in the search-methodology disclosure ordered in the previous section. The disclosure shall state whether Trailsedge requested documents from any non-Board unit owners; identify any non-Board unit owners from whom Trailsedge obtained documents or information used in preparing its discovery responses or productions; identify the categories of documents obtained from those members; and certify whether Trailsedge has produced all responsive, nonprivileged documents from those member-provided materials that are within its possession, custody, or control.

Id. at *8.

For more on “possession, custody, and control,” see:

• Possession, Custody, or Control – Need for a Uniform National Standard – Part II;
• Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?

Meta redacted four documents, asserting attorney-client privilege.  The court held that the four disputed documents post-dated commencement of the lawsuit.  Therefore, they were chronologically in the litigation hold time frame.

Plaintiffs challenged the privilege.  The court wrote: “Plaintiffs argue that these materials are subject to the crime-fraud exception to the attorney-client privilege, on the grounds that communications from counsel to a client to spoliate evidence are not properly shielded by the privilege. In support, Plaintiffs bring to this Court’s attention a pair of recent rulings from the Superior Court of the District of Columbia finding that these four documents are subject to the crime-fraud exception and ordering their production.”  Id. at *1. The Social Media Adolescent court stated:

Here, Plaintiffs argue that the crime-fraud exception applies here, because the allegedly privileged communications at issue constituted advice from lawyers to Meta employees that they should alter or change language in certain documents and such advice resulted in and encouraged spoliation of evidence.

Id. at *4.

At its core, Plaintiffs’ argument was that Meta’s internal messages showed that Meta’s attorneys had advised that documents subject to a litigation hold should be modified. The Social Media Adolescent court explained the crime-fraud exception to the attorney-client privilege in this context. After in camera review, the court held that, on the facts presented, the crime-fraud exception did not apply.  It found the advice to be not what Plaintiffs asserted; pointed to lack of destruction of evidence; and, noted the availability of “before and after” versions of the documents. It then ordered production of those versions.  As such, there was no prejudice.  I assume that, because the issue was the crime-fraud exception, the court did not cite the spoliation rule, Fed.R.Civ.P. 37(e).

DIRECTIVES TO SPOLIATE ARE NOT PRIVILEGED

Like most states: “Under applicable ethical rules, a California lawyer cannot counsel a client to unlawfully alter evidence.”  Social Media Adolescent, 2026 WL 1632746, at  *5. Further, falsifying evidence is a crime. Id.

“Under California Rule 3.4(a), a lawyer cannot counsel a client to destroy or alter evidence. Destroying evidence eliminates such evidence from possible discovery entirely and is sanctionable conduct.”  Id.  “Irreversibly altering evidence, such as in a way that overwrites or irretrievably replaces the original evidence, also eliminates the original text or content of that evidence from possible discovery entirely.”  Id.

Accordingly, it should be self-evident that when a lawyer advises a client to destroy evidence completely or to irreparably modify that evidence (where litigation is reasonably foreseeable at the time, or worse, ongoing), communications regarding that advice could be subject to the crime-fraud exception because such advice would run afoul of the lawyer’s duties under the rules of professional conduct and could implicate criminal statutes concerning fabricating or destroying evidence.

Id. at *6 (emphasis added).  Thus:

Communications between lawyer and client respecting spoliation of evidence, however, is fundamentally inconsistent with the asserted principles behind the recognition of the attorney-client privilege, namely, “observance of law” and the “administration of justice.” Indeed, by intentionally removing relevant evidence from litigation, spoliation directly undermines the administration of justice. Moreover, an attorney who counsels a client about the spoliation of evidence is not advancing the observance of the law, but rather counseling misconduct. Thus, there is no logical reason to extend the protection of the attorney-client privilege to communications undertaken in order to further spoliation.

Id. at *6 (emphasis added; citation and quotation marks omitted).

META GAVE NO DIRECTIVES TO, AND NOTHING WAS, SPOLIATED

After in camera review and based on a comprehensive analysis, the court essentially concluded that Plaintiffs failed to show destruction advice and “before and after” copies were available.

[T]he Court bases its finding that the crime-fraud exception should not apply in large part on the rationale that, if the underlying documents and evidence which demonstrate the changes made to the documents are produced, then there has been no spoliation. It follows that if Meta refuses or otherwise fails to produce the documents as ordered herein, or if it turns out that the prior versions of the documents do not in fact exist, then a fundamental premise of the Court’s rulings would be lacking. Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ request to find these four documents are subject to the crime-fraud exception and not privileged.

Id. at *14.

“Documents 1 and 2”

As to two documents, the court found that the facts showed only discussion about modifying other documents and those comments were ultimately not implemented.  Further, Meta produced seven versions of the study in discovery.

Mere discussion was insufficient to trigger the crime-fraud exception. After detailed review of “Documents 1 and 2,” the court concluded: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record demonstrates that there was discussion about ‘possible’ alteration of part of the MYST study proposal. Ms. [redacted]’s statement that ‘ultimately’ the language was not modified implies that, in the process of editing/drafting before the MYST study was finalized, the language underwent modifications which ‘ultimately’ were not implemented. The issue then reduces to whether the crime-fraud exception applies to communications regarding proposed or possible modifications to the underlying MYST study proposal, i.e. whether such communications qualify as some form of advising improper alteration of evidence.” Id. at *7 (emphasis added).

However, not only was there no implementation, here multiple versions of the document were available.  “[W]here the various versions of the underlying document (both predating and postdating the attorney communication) are produced in discovery, there is insufficient cause to pierce the privilege based on the crime-fraud exception.”

As noted, here, Meta has confirmed that seven versions of the MYST study have been produced in discovery. Meta has confirmed that previous versions (prior to the attorney advice) of the MYST study proposal have been found and retained in its document repositories (although not produced in discovery previously). Based on this record, there has been no destruction of evidence, because the versions of the MYST study proposal which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist and thus any changes are discoverable from simple comparison of the text of the various versions.

Id. at *8 (emphasis added).  The court ordered production of the withheld documents and held that the crime-fraud exception did not apply. Id.

“Document 3”

The court reviewed “Document 3.” It found no evidence of any directive to alter it.

It wrote that “the Court finds that the following two redacted chat messages in Document 3 do not mention, discuss, or even relate to any communication from anyone (including a lawyer) to destroy, alter, or change any evidence….” Id. at *9.  “There is simply no discussion in these two chat messages regarding editing, altering, changing, modifying, destroying, or in any way spoliating any evidence.” Id.

Therefore: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record indicates that there was discussion with Meta’s lawyers about redesigning the MYST study. As with Documents 1 and 2, the issue then reduces to whether the crime-fraud exception applies to communications regarding proposed and implemented modifications to the MYST study documents, i.e. whether such communications qualify as improperly advising alteration of evidence.”  Id. at *10. It did not apply.

Again, multiple versions were preserved: “Meta has confirmed that previous versions (prior to the attorney advice) of these collaborative documents are found within Google Vault (although those versions have not been produced in discovery previously).”

The court concluded that: “Based on this record, there has been no destruction of evidence, because the versions of the MYST study documents which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist, and thus, any changes are discoverable from simple comparison of the text of the various versions.”  Id. at *11. Again, production was ordered.

As such, there was no prejudice: “With these previous versions of the MYST study documents in hand, as well as the already-produced later version of those same Google documents, Plaintiffs will be able to determine readily what changes were made to the language of those documents over time and make use of those facts in arguing the merits of this case however they see fit.”  Id. at *11. The crime-fraud exception did not pierce the privilege.

“Document 4”

In “Document 4,” Meta’s counsel suggested edits to a slide deck. The court explained that “the chat messages at issue refer to multiple alterations suggested by Meta’s counsel to text in a set of slides to be used for a presentation which Ms. [redacted] and Ms. [redacted] were working on at the time.”  Id. at *12.

Unlike Documents 1 and 2, the edits were made:  “There is no real dispute that the slide deck discussed by Ms. [redacted] and Ms. [redacted] changed over time.”  Id.

However, as before: “Meta confirms that “prior versions of the slides, including the versions that predate the lawyer’s advice, have been retained, but have not been produced.” Id. at *13 (cleaned up).

Because of that, the court wrote: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record demonstrates that there was discussion about alterations to the language in the underlying slide deck discussed in the chat messages of Document 4.”  Id. at *13.

Again, there was no prejudice: “Based on this record, there has been no destruction of evidence, because the versions of the slide deck which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist, and thus, any changes are discoverable from simple comparison of the text of the various versions.”  Id. Again, production was ordered.

“With these previous versions of the slide deck in hand, as well as the already-produced later version of that slide deck, Plaintiffs will be able to determine readily what changes were made to the language of that document over time and make use of those facts in arguing the merits of this case however they see fit.”  Id.  The crime-fraud exception did not apply.

Inconsistency with the D.C. Superior Court

The Social Media Adolescent court recognized that its holding differed from a decision of the D.C. Superior Court on the same records: “The Court is cognizant that its conclusions as to the crime-fraud issues here differ from those of the D.C. Superior Court.”

It distinguished that decision on several bases, one of which was governing law:  “As the D.C. Superior Court’s order denying Meta’s motion for reconsideration makes clear, the D.C. Superior Court was applying D.C. law on the issue of crime-fraud and not the controlling Ninth Circuit standards applicable here. The precise formulation of the crime-fraud standard under D.C. law is not identical to the formulation of the standard under Ninth Circuit or California law (discussed above). To the extent the conclusions of law differ as between this Court and the D.C. Superior Court, that should not be surprising and is of course one reason why the D.C. Superior Court’s decisions are, at best, nonbinding, persuasive authority.” Id. at *14.

Because of these procedural and other differences, the court was not persuaded by the D.C. decision. There was, however, a practical issue.

The Social Media Adolescent court noted that the unredacted documents may be “imminently” produced in D.C., and it considered the “practical impact” of that eventuality.  “As a practical matter, at some point it is possible that this entire dispute as to privilege may become moot or at least narrowed.” Id. at *16. The Social Media Adolescent court granted Plaintiffs leave to file for relief “if, for example, the four documents are made public in another forum.”  Id.

A Detour Into Fed.R.Civ.P. 37(e)

The procedural rule governing spoliation of ESI is Fed.R.Civ.P. 37(e). Under that Rule, sanctions may be imposed only “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery….” [emphasis added].

Here, the before and after versions appear to have satisfactorily restored or replaced any ESI that had gone missing.  As such, no sanction would be permissible.  In short, arguably, there was no spoliation and therefore there could be no application of crime-fraud exception to the attorney client privilege if that exception was grounded on alleged spoliation.

They sought depositions in excess of those provided for by the Federal Rules of Civil Procedure based on documents that had been produced from multiple custodians.  The court held that not every document custodian should be deposed and: “Custodians are chosen because their files are likely to contain responsive documents, which is a reason to collect their files, not necessarily a reason to depose them.”  Id. at *3.

Plaintiffs asked for leave to take 27 fact depositions of party witnesses, “without prejudice to seeking more.”  In response:

LinkedIn asks the court to (1) hold the plaintiffs to the presumptive ten depositions, (2) require them to serve their Rule 30(b)(6) notice now, and (3) require them to coordinate with LinkedIn on overlapping Rule 30(b)(1) and 30(b)(6) witnesses.

The ruling moved toward the center: “ The court grants the plaintiffs’ motion in part: the plaintiffs may take up to fifteen depositions of party witnesses, a number that includes one Rule 30(b)(6) deposition of LinkedIn, without prejudice to a renewed, witness-specific showing of need for additional depositions.”  They were directed to coordinate overlapping depositions.

The court wrote that: “Document discovery to date has been extensive: LinkedIn has nineteen designated custodians, including former CEO Ryan Roslansky and current CEO Daniel Shapero, and it has produced thousands of custodial documents.”

The 27 requested depositions were party witnesses. They included current or former senior executives and four groups of current or former employees. The court wrote: “For each proposed deponent, the plaintiffs cite produced documents that, they contend, show the witness’s personal involvement in the challenged conduct (which spans ten years) or unique knowledge of market definition, monopoly power, or pricing, all topics central to the plaintiffs’ claims.”

“LinkedIn responds that the plaintiffs’ showing of particularized need largely rests on the witnesses being designated custodians or appearing in the document production. It contends that the plaintiffs misread many of the documents they cite and provides an appendix that, it asserts, provides the fuller context for those produced materials. LinkedIn contends that several of the plaintiffs’ proposed deponents (including an in-house lawyer and the engineer who leads LinkedIn’s AI-inference platform) have nothing to do with the challenged conduct, and that other witnesses are at least facially duplicative because they work on the same issues and teams.”

The court explained that: “Rule 30(a)(2) limits the number of depositions that each side may take (without leave or stipulation) to ten. A party seeking to exceed the presumptive number of depositions must make a particularized showing of the need for the additional discovery…. To that end, courts will generally not grant leave to expand the number of depositions until the moving party has exhausted the ten depositions permitted as of right under Rule 30(a)(2)….. When evaluating a party’s request to expand discovery limitations, the court must ensure that the discovery sought is relevant to the party’s claims or defenses and not unreasonably cumulative, duplicative, or burdensome.”  Id. at *2 (cleaned up).

The court found that 10 depositions were too few: “The plaintiffs’ claims are ‘narrow’ in the sense that they target two categories of conduct, but that conduct spans more than a decade, hundreds of API agreements, a major cloud migration, and pricing across multiple Premium product lines. The document production to date reflects this scope, with thousands of custodial files produced. And this court’s previous orders have acknowledged the breadth of the underlying conduct by ordering additional custodians and search terms. While sometimes courts require a party to exhaust the depositions it is permitted before seeking more, courts depart from this when there are multiple parties and the case’s complexity warrants more depositions.”  Id. at *3. That situation was presented here. Id.

“But,” the court continued, “twenty-seven depositions is too many, at least on this record. Much of the plaintiffs’ showing hinges on the requested witnesses being designated custodians or appearing on produced documents. This falls short of the plaintiffs’ burden of making a particularized showing of need: custodial status and document counts do not, by themselves, establish that a witness will offer relevant and non-cumulative deposition testimony.”  Id. at *3 (emphasis added).  In short, not every custodian must be deposed. Id.  The court also identified a “duplication problem” in plaintiffs’ request.  “And for some of the twenty-seven witnesses, relevance is thin….” Id.

The court’s holding was: “A reasonable approach lies between the parties’ positions: leave to take up to fifteen depositions of party witnesses, a number that includes one Rule 30(b)(6) deposition of LinkedIn (which counts as one deposition regardless of the number of designees)….  This middle course is consistent with decisions managing comparable cases.”  Id. at *4.  It left the door open to additional, particularized requests.

This blog was initially posted on  Electronic Discovery Reference Model.

Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials.

a.  “AI tool” means any automated system that uses statistical modeling, machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.

b.  Under no circumstances will any member of the defense team submit Disclosure Material to a publicly accessible AI tool, or any AI tool, that retains and uses submitted data to train models. Such AI tools pose unique risks to the security and integrity of Disclosure Material, given the practical inability to claw back or delete data once it has been incorporated into a model.

c.  With respect to any AI tool used by the defendant, defense counsel must be able to certify that (i) the AI tool will maintain the confidentiality of any Disclosure Material; (ii) the AI tool will not expose any Disclosure Material to third parties not authorized under this Protective Order to receive such materials; (iii) the AI tool will not retain or use any Disclosure Material for model training; and (iv) all Disclosure Material will be removed from the AI tool at the conclusion of this case.

U.S.A. v. Mora, 2026 WL 2058416 (S.D.N.Y. Jul. 16, 2026).

This is no longer front page news. It is becoming standard practice.

One provision appears problematical to me—”the AI tool will not expose any Disclosure Material to third parties not authorized under this Protective Order to receive such materials.”  Given most A.I. privacy policies, that seems an excessively high standard.

One hypothetical discussed in some of the following blogs and reflected in this order, is the problem of exercising “clawback” rights if material has been uploaded to A.I.

Assume that A and B have a Fed.R.Evid. 502 non-waiver order and a Fed.R.Civ.P. 26 “clawback” agreement. Assume further that A produces a privileged document to B in discovery.  The next day, B uploads it to consumer-grade AI.  Assume that the following day, A exercises its “clawback” rights. How does B return, sequester, or destroy the document on A.I.?

For more information on related orders, please see:

• Another A.I. Protective Order (Jul. 9, 2026);
•  A.I. Protective Order—Again (Jun. 18, 2026);
• Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case (Jun. 4, 2026);
• Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care?  (May 26, 2026), discussing Rudasill v. Swiss Re American Holding Corporation, 2026 WL 1329451 (S.D.N.Y. May 13, 2026);
• Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026), discussing In re: ByHeart, Inc., Infant Formula Marketing, Sales Practices, and Products Liability Litigation,2026 WL 1103170 (S.D.N.Y. Apr. 23, 2026);
• A.I. Protective Orders Are Becoming Routine (Apr. 20, 2026), discussing Stansfield v. International Business Machines Corporation, 2026 WL 1031230, at *2 (D. Nev. Apr. 16, 2026);
• “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested (Apr. 5, 2026);
• Morgan v. V2X, Inc.,2026 WL 864223 (D. Col. Mar. 30, 2026), as also discussed in Important A.I. Work Product and Protective Order Decision (Mar. 31, 2026);
• Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”) (Nov. 3, 2025), based on Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025);
• Protective Order Limited Uploading Discovery Responses to Open A.I.(Mar. 26, 2026), discussing Jeffries v. Harcros Chemicals, Inc.,2026 WL 820218 (D. Kans. Mar. 25, 2026).

This blog was initially posted on  Electronic Discovery Reference Model.

1. The Parties agree that each Responding Party is best situated to determine the most appropriate method or methods for that Responding Party to search, collect, cull, and produce documents responsive to discovery, consistent with Sedona Conference Principle 6 which instructs that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Nothing in this ESI Protocol alters a Responding Party’s obligation to conduct a reasonable inquiry or use a reasonable process in searching for and producing relevant information, nor does it alter a Requesting Party’s right to challenge a deficient production.
2. The Parties will meet and confer to discuss the use of search terms, filters and date ranges or the use of advanced search and retrieval technologies. Within a reasonable time period, Responding Party shall specify the technique or techniques (e.g., search terms, technology assisted review (“TAR”), artificial intelligence or machine-learning technology (collectively, “AI”)) it will use to search for and cull material it reasonably anticipates will be responsive to Requests for Production. If the Requesting Party objects to the particular technique or techniques, the Parties will timely meet and confer regarding the matter and submit any unresolved disputes to the Court for resolution.
3. A Party who intends to use search terms will describe a Search Protocol that will include: (a) the criteria to be used to identify the universe of Documents to which search terms will be applied (e.g., date range), and (b) proposed search terms to be applied to that universe of Documents, subject to revision based on, for example, meet and confer of the Parties and the number of hits returned by each term. A Requesting Party may also suggest search terms to be applied. Each Requesting Party shall limit its ESI production requests to a total of twenty search terms per custodian per party, for the avoidance of doubt a custodian can include either Party itself for searches of Party-wide electronic repositories. The Parties may jointly agree to modify this limit without the Court’s leave. The Court shall consider contested requests for additional search terms per custodian, upon showing a distinct need based on the size, complexity, and issues of this specific case. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company’s name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. The Parties acknowledge that “indiscriminate terms” would not include names of various publicly available training datasets such as, “Books3.” A conjunctive combination of multiple words or phrases (e.g., “computer” and “system”) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., “computer” or “system”) broadens the search, and thus each word or phrase shall count as a separate search term unless they are variants of the same word or identify alternative names, examples, or members of the same discrete set of datasets, websites, or repositories. Use of narrowing search criteria (e.g., “and,” “but not,” “w/x”) is encouraged to limit the production.
4. Any Search Protocol will include a requirement for the Responding Party to provide hit reports for proposed search terms prior to utilizing the search terms to narrow the universe of Documents to be reviewed. Search term hit reports will include, for each term, the number of documents with one or more search term hits, that number plus any attachments to those documents, and the number of documents hitting uniquely on that term and not on any other term in the same list. The report will also include total number of documents hitting on one or more terms and that number plus any attachments to those documents (presumptive review population). Any Search Protocol shall include a requirement to review one random statistical sample of distinct Documents, determined by a sampling of a confidence level of 95% and a margin of error of 2%, that do not hit on the search terms that are agreed upon by the Parties (the “Null Set”). The Null Set of distinct Documents shall be generated after all document processing is substantially complete. These Null Set Documents should come from each custodian and include Documents throughout the entire date range. The Responding Party should then review the Null Set Documents and include in future productions any responsive Documents located therein. If more than 10% of the Null Set are responsive, then the Parties shall revisit the agreed-upon search terms by analyzing the Documents produced and determining which additional terms are necessary. The Parties agree to meet and confer regarding the Search Protocol and to raise any disputes regarding the Search Protocol for resolution by the Court.
5. Nothing in this order or any other document relating to discovery in this matter shall be construed or interpreted as precluding a Responding Party from performing a responsiveness review to determine if documents captured by search terms are in fact responsive to the requesting party’s request. Further, nothing in this order or any other document relating to discovery in this matter shall be construed or interpreted as requiring the production of all documents captured by any search term if that document is – in good faith – deemed not responsive to the requesting party’s request for production by the Responding Party.
6. If a Responding Party elects to use search terms in combination with TAR on the same set of Documents (“layering”), it shall disclose that intent to the Requesting Party before doing so, and the Parties shall meet and confer on a protocol governing the use of layering. The protocol shall include a method to compare the number of hits when there is and is not layering for the set of Documents at issue, and permit the Requesting Party to make a reasonable request that the Responding Party review a reasonable sample of Documents excluded from review through the layering process to assess whether responsive Documents have been excluded. In the event that the Parties cannot reach an agreement on a protocol after meeting and conferring, the Parties shall submit competing protocols to the Court.
7. A Party who intends to use TAR to reduce the population of documents to be reviewed shall disclose a TAR Protocol that includes, at a minimum, the information listed in Appendix 3.
8. A Responding Party that elects to use AI to assist in responsiveness or privilege determinations (“AI Responsiveness Review”) shall disclose that election to the Requesting Party. AI Responsiveness Review constitutes workflows utilizing large-language models (LLMs), deep-learning classifiers, embedding-based similarity analysis, semantic clustering, predictive redaction systems, or generative summarization models used to determine whether a Document will be produced, withheld, or redacted.
9. The Responding Party shall provide an AI Review Protocol, which shall include, at a minimum, the information listed in Appendix 4.

Nothing in this Section shall be construed to diminish the Responding Party’s obligations under the Federal Rules of Civil Procedure, this Order, or applicable law. Legal counsel remains responsible for ensuring the accuracy and completeness of all productions.

Documents or ESI known to be responsive to a discovery request or relevant to the subject matter of this action shall be produced without regard to whether it was responsive to any search methodology described herein or developed in accordance with this Order, unless Counsel specifically identifies the documents being withheld and provides a specific objection for withholding each withheld document.

Documents which are reasonably believed to be responsive and for which text-based search technologies are fundamentally ineffective, such as images, video, certain spreadsheets, certain hard copy documents, certain documents from noncustodial sources, or certain foreign language documents where the Parties do not have suitable search terms in such language, must be reviewed without culling by search terms, predictive coding, or other technologies that rely primarily on text within the document. Prior to the production of such unsearchable items, the Responding Party may conduct a page-by-page review for responsiveness, confidentiality, privilege, and other protections.