After Leafwell was awarded a fee sanction, however, it did not follow the court’s direction on liquidating its claim.  The court wrote:

For the fee sanction, the parties were directed to make a good faith attempt to resolve the amount and to apprise us of any dispute. But [defendant] Leafwell and its counsel chose instead to simply make the situation worse. Turning a blind eye to the fact that all of its piling on was denied as moot (a motion for sanctions, a motion for leave to reply to Castro’s response to our order to show cause, and a request for oral argument), Leafwell and its counsel cast aside the obligations imposed by 28 U.S.C. § 1927, Rules 1 and 11, and the Civil Action Order…; ignored the directive in the sanctions order to simply file a notice advising of any hourly-rate or amount-of-hours dispute…; and filed an 83-page submission seeking $215,401.60 in fees!…

Id. at *1 (emphasis added). The court wrote: “They’re lucky we don’t require them to reimburse Castro for responding to it.”

The court wrote: “As tempting as it might be to zero out the fee award (and justifiably so), we stay the course on which we embarked at our own choosing.”  Id. The court awarded a Rule 11 sanction of $6,720, after a detailed analysis of the record.

Mr. Bradwell sued the Governor and Chief Administrative Judge alleging that the A.I. policy had  a “direct chilling effect on self-represented litigants” in violation of his First and Fourteenth Amendment rights.  Proceeding in forma pauperis, he appears to have asserted that he could not afford expensive commercial databases.  The court wrote:

The regulation cited by Plaintiff states that “[i]t is the policy of the Unified Court System that the use by attorneys and parties of artificial intelligence tools in preparing papers submitted to a court should not be prohibited, as long as such use is in accordance with the duties and responsibilities that apply to individuals who submit papers to a court.” 22 N.Y. Comp. Codes R. & Regs. § 161.3.

Bradwell v. Hochul, 2026 WL 2983166 (N.D.N.Y. Oct. 5, 2026).

Under 22 N.Y. Comp. Codes R. & Regs. § 161.3:  “It is the policy of the Unified Court System that the use by attorneys and parties of artificial intelligence tools in preparing papers submitted to a court should not be prohibited, as long as such use is in accordance with the duties and responsibilities that apply to individuals who submit papers to a court. Since those duties and responsibilities already apply to all submissions, regardless of whether AI tools were used, attorneys and parties should not be required, upon submitting papers, to disclose to the court that they have used AI in the preparation of such papers.

Under §161.4: “A court may, in its discretion, implement a part rule governing the use by attorneys and parties of artificial intelligence tools in preparing papers submitted to the court. If a court determines that such a rule is appropriate, the court is encouraged to adopt the model rule set forth in Appendix A of this Part.”

Under Appendix A:

Every attorney or party who uses an artificial intelligence (AI) tool in preparing any paper submitted to this court is expected to understand that tool’s capabilities and limitations. Attorneys and parties need to be aware that AI tools, among other risks and limitations, can generate fabricated information or fictitious citations to authority (commonly known as hallucinations). Under existing authority, by signing a paper and submitting it to this court, an attorney or party certifies that the paper does not contain any false material factual statement or any frivolous legal argument (see, e.g., 22 NYCRR 130-1.1, 130-1.1a), and an attorney who submits any paper to this court is additionally bound by the Rules of Professional Conduct. Accordingly, any attorney or party who uses an artificial intelligence tool, as defined in 22 NYCRR 161.2(a), in preparing any paper, as defined in 22 NYCRR 161.2(b), filed in or submitted to this court or served on another party in a case before this court is required to carefully review the paper and independently ensure that it contains no fabricated or fictitious cases, statutes, or other material. By signing such paper, an attorney or party certifies that such a review has been conducted and that the paper contains no such fabricated or fictitious content. If this court determines that this requirement has not been satisfied, such attorney or party may be subject to sanction or other remedial action.

The Bradwell court wrote: “The text of these regulations applies to attorneys and parties. Plaintiff has not presented a single law or rule which unconstitutionally discriminates against pro se parties. He has also failed to state any facts explaining why he is unable to comply with any artificial intelligence limitations or compliance requirements. Insofar as Plaintiff references ‘expensive commercial legal database (e.g., Westlaw, LexisNexis),’ he does not allege any rule preventing his access to those databases.”

After addressing immunity of the Governor and Judge, the Bradwell court wrote: “The Court agrees with Magistrate Judge Katz that amendment would be futile because Plaintiff has not presented any facts which suggest an ability to overcome the immunity doctrines nor is there any indication of a valid claim as New York courts do not prohibit the use of artificial intelligence for pro se litigants.”

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

A producing Party may utilize technology-assisted review, predictive coding, generative artificial intelligence, analytics, keyword searching, clustering, email threading, concept searching, active learning, or other automated or algorithmic tools in connection with the collection, processing, search, review, redaction, privilege review, or production of documents and ESI. The producing Party shall have sole discretion regarding the selection, configuration, implementation, and use of such tools and methodologies. No producing Party shall be required to disclose the identity, version, prompts, workflows, training materials, validation procedures, review protocols, quality control measures, precision rates, recall rates, elusion testing, or other details concerning the use of such tools absent a showing of good cause by the receiving Party or an order of the Court. The use of such technologies shall not, by itself, provide a basis for challenging the adequacy of a Party’s collection, review, privilege determinations, or production.

By comparison, please see Three More A.I. Protective Orders (Oct. 9, 2026), and the posts listed therein.

The jointly requested A.I. protective order in Hoffman v. Univ. of Nebraska Medical Ctr., 2026 WL 2969621 (D. Neb. Oct. 2, 2026), states:

Artificial Intelligence. Qualified Recipients shall not, without the Producing Party’s express written consent, upload, submit, or otherwise provide Confidential Discovery Material (or any information extracted therefrom) or any deposition testimony taken in this matter to any open-source artificial intelligence platform or service including, but not limited to, platforms or services that use or assemble uploaded information to train or improve machine-learning models. This prohibition applies regardless of whether the artificial intelligence platform or service represents it will maintain the confidentiality of information submitted by the user. The parties and their counsel are not prohibited from uploading, submitting, or otherwise providing Confidential Discovery Material (or information extracted therefrom) or any deposition testimony taken in this matter to a closed-source artificial intelligence platform or service, including Harvey, Westlaw, LexisNexis, Servient’s AI Canvas, or any other closed-source artificial intelligence platform or service agreed to by the parties.

In ANR Pipeline Co., LLC v. B&B Metal Processing Co., Inc., 2026 WL 2970050 (E.D. Wisc. Oct. 2, 2026), the court wrote:

On September 22, 2026, the parties filed a joint motion for the entry of a protective order, with a stipulated proposed order…. The parties request that the Court enter such an order to “prevent public disclosure of nonpublic confidential technical, commercial, or business information that may be exchanged in discovery.” … Federal Rule of Civil Procedure Rule 26(c) allows for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” including “requiring that a trade secret or other confidential research, development, or commercial information … be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G); see also Civ. L.R. 26(e).

Protective orders are an exception to the general rule that pretrial discovery must occur in the public eye…. Litigation must be conducted in public to the maximum extent consistent with respecting trade secrets … and other facts that should be held in confidence….

Nonetheless, the Court can enter a protective order if the parties have shown good cause and that the order is narrowly tailored to serve that cause…. The Court can find that even broad, blanket orders are narrowly tailored and permissible when it finds that two factors are satisfied: (1) that the parties will act in good faith in designating the portions of the record that should be subject to the protective order; and (2) that the order explicitly allows the parties to the case and other interested members of the public to challenge the sealing of documents….

The Court finds that the parties have requested the protective order in this action in good faith. The parties report that this case will entail the disclosure of confidential technical information about the parties…. Thus, the Court is satisfied that there exists a sufficient basis for the requested protective order. [cleaned up].

However, the court modified the parties’ request to establish parameters for the use of A.I. as it pertains to confidential documents.  Id. at *1.  The order states:

A receiving party may use AI tools in connection with discovery materials produced in this action only if the AI tool is operated in a secure environment and is subject to enforceable contractual terms that (a) prohibit the provider from retaining, using, disclosing, selling, or using the materials to train, improve, or develop any AI system; (b) prohibit the materials from being made publicly available or accessible to any other customer or third party; and (c) require commercially reasonable administrative, technical, and physical safeguards to protect the confidentiality of the materials. Discovery materials, whether designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY, shall not be entered into any publicly available or consumer-based AI platform. Any use of AI tools must remain consistent with this Order and with the requirement that discovery materials be used solely for purposes of this litigation.

Id. at *5.

A protective order was also entered by consent in U.S.A. v. Amanuel, 2026 WL 2964210 (S.D.N.Y. Oct. 1, 2026):

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

a.  “AI tool” means any automated system that uses 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.  The defense team will not submit Disclosure Materials to a publicly accessible version of an AI tool (e.g., ChatGPT, Claude, Grok, Gemini, Copilot, Perplexity, Midjourney, Canva). The defense team will not submit Disclosure Materials to an AI tool for which the AI tool provider or vendor (e.g., OpenAI, Anthropic, Microsoft, Google) uses submitted data for its own model training, allows submitted data to be publicly accessed, discloses submitted data to third parties, or, except as specified below, retains submitted data. Publicly accessible AI tools pose unique risks to the security and integrity of Disclosure Materials, given the practical inability to claw back or delete data once it has been incorporated into a model.

c. The defense may submit Disclosure Materials to an AI tool (i) that maintains the confidentiality of Disclosure Materials; (ii) that will not expose any Disclosure Materials to third parties not authorized under this Protective Order to receive such materials; (iii) that will not retain or use any Disclosure Materials for model training; and (iv) all Disclosure Materials will be removed from the AI tool(s) at the conclusion of this case.

Some prior posts are:

• Another AI Protective Order (Sep. 16, 2026);
• A.I. Protective Order by Consent in Google Case (Sep. 13, 2026);
• No Violation of A.I. Protective Order (Sep. 11, 2026);
• Another Dispute over A.I. Protective Order (Sep. 6, 2026);
• A.I. Protective Orders Are Becoming Routine (Aug. 27 ,2026);
•  Another A.I. Protective Order – Part 10 (Aug. 21, 2026);
• Restrictions on Use of Artificial Intelligence Tools to Process Disclosure Materials (Jul. 27, 2026);
• 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);
• U.S.A. v. The New York and Presbyterian Hosp., 2026 WL 2547094, at *5 (S.D.N.Y. Aug. 28, 2026)(Amended Protective Order);
• U.S.A. v. Jones, 2026 WL 2607719, at *2 (S.D.N.Y. Sep. 3, 2026);
• Doe v. Google LLC, 2026 WL 2584519 (N.D. Cal. Sep. 1, 2026);
• ZL Technologies, Inc. v. KLDiscovery Ontrack, LLC, 2026 WL 2731631, at *9 (S.D.N.Y. Sep. 16, 2026);
• U.S. v. Perez-Feliz, 2026 WL 2754823 (S.D.N.Y. Sep. 17, 2026)(consent order);
• U.S. v. Montes, 2026 WL 2824059, at *1 (S.D.N.Y. Sep. 21, 2026)(by consent);
• U.S. v. Hawkins, 2026 WL 2825014, at *2 (S.D.N.Y. Sep. 21, 20260(same);
• U.S.A. v Amanuel, 2026 WL 2972618 (S.D.N.Y. Oct. 2, 2026)(by consent).

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE:

White v. Chime Financial, Inc., 2026 WL 3000904 (W.D. Wash. Oct. 6, 2026)(stipulated):

USE OF ARTIFICIAL INTELLIGENCE
Should a Party elect to utilize artificial intelligence (“AI”) to assist in reviewing, analyzing, or summarizing discovery material produced or exchanged in this litigation, the Party shall take all necessary steps to ensure that the application, service, or analytical software is fully containerized. “Fully containerized,” as used in this Order, means an AI tool that does not retain the substance of a prompt or documents reviewed, share the substance of a prompt or documents reviewed for training of large language models, or use the substance of a prompt or documents reviewed in any other matter or inquiry other than this litigation. For the avoidance of doubt, this restriction expressly applies to the use of non-containerized advanced large language models (such as publicly available large language models), generative AI tools, and other advanced AI systems, including, but not limited to, OpenAI, Gemini, LLAMA, MidJourney, and Stable Diffusion, but this provision does not limit the use of services leveraging the technology underlying these generative AI tools in a fully containerized environment, including, but not limited to, Copilot Harvey, Relativity aiR, DISCO Cecelia, Everlaw AI, Syllo, Alchemy, Lexis+ AI, Epiq AIDA, Lighthouse AI, Westlaw AI, ChatGPT Enterprise, Microsoft 365 Copilot Enterprise, Claude Enterprise, NotebookLM Pro and Ultra, and Gemini Pro and Ultra. Before submitting any Protected Material to a fully containerized AI tool, a receiving party shall ensure that it (or its vendor) can delete all such Protected Material from the AI tool at the conclusion of this matter, including any derivative information stored within the tool. The obligations and restrictions of this paragraph apply even where the Protected Material has been anonymized.

U.S.A.  v. Lockhart, 2026 WL 3003727 (S.D.N.Y.  Oct. 6, 2026)(by consent):

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

a. “AI tool” means any automated system that uses 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. The defense team will not submit Disclosure Materials to a publicly accessible version of an AI tool (e.g., ChatGPT, Claude, Grok, Gemini, Copilot, Perplexity, Midjourney, Canva). The defense team will not submit Disclosure Materials to an AI tool for which the AI tool provider or vendor (e.g., OpenAI, Anthropic, Microsoft, Google) uses submitted data for its own model training, allows submitted data to be publicly accessed, discloses submitted data to third parties, or, except as specified below, retains submitted data. Publicly accessible AI tools pose unique risks to the security and integrity of Disclosure Materials, given the practical inability to claw back or delete data once it has been incorporated into a model.

*2 c. The defense may submit Disclosure Materials to an AI tool (i) that maintains the confidentiality of Disclosure Materials; (ii) that will not expose any Disclosure Materials to third parties not authorized under this Protective Order to receive such materials; (iii) that will not retain or use any Disclosure Materials for model training; and (iv) all Disclosure Materials will be removed from the AI tool(s) at the conclusion of this case.

d. The Government will not submit any materials disclosed by the defense pursuant to Federal Rules of Criminal Procedure 26.2, 32.1 or other defense disclosure obligations (“Defense Materials”) to a publicly accessible version of an AI tool. The Government will not submit Defense Materials to an AI tool for which the AI tool provider or vendor uses submitted data for its own model training, allows submitted data to be publicly accessed, discloses submitted data to third parties, or, except as specified below, retains submitted data.

e. The Government may submit Defense Materials to an AI tool (i) that maintains the confidentiality of Defense Materials; (ii) that will not expose any Defense Materials to third parties not authorized under this Protective Order to receive such materials; (iii) that will not retain or use any Defense Sealed Materials for model training; and (iv) all Defense Materials will be removed from the AI tool(s) at the conclusion of this case.

U.S.A. v. Santos, 2026 WL 3003653 (Oct. 6, 2026)(same, by consent); U.S.A. v. Robinson, 2026 WL 3003677 (Oct. 6, 2026)(same).

U.S.A. v. Peplow, 2026 WL 3026474 (E.D. Cal. Oct. 8, 2026)(stipulation):

Artificial Intelligence Tools
15. No person or entity authorized to have access to protected material under the terms of the requested order shall input, transmit, upload, submit, quote, feed, process, generate output from, or otherwise expose any protected material received pursuant to the requested order to any artificial intelligence (“AI”) tool absent the prior written consent of the government or an order of the Court following a properly noticed motion to which the government has an opportunity to respond, unless that AI tool—

a) is an enterprise-grade platform that counsel for the defendant has licensed;
b) is subject to a binding written agreement that (i) requires the provider to keep all user-supplied data strictly confidential, and (ii) expressly prohibits the provider from using such data for training, fine-tuning, product improvement, or any purpose other than providing the contracted-for services; and
c) employs technical and organizational security measures reasonably designed to prevent any unauthorized access, disclosure, or use of protected material.

16. The obligations and restrictions of this section apply even where the data or the protected material has been anonymized. “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.

17. By participating in this agreement, counsel for the defendant certifies: (i) they have implemented reasonable measures to ensure, if using any AI tool, it will maintain the protected discovery’s confidentiality as required by this Agreement and (ii) they will ensure all protected discovery is deleted from the tool once this case concludes.

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

U.S.A. v. Sarris, 2026 WL 2937892, at *2 (S.D.N.Y.  Sep 30, 2026)(by consent).

Mr. Ferlito sued Harbor Freight. He alleged that he purchased a “splitting maul,” which is a specialized axe used to split wood, that was defective. While he was hanging the maul up for storage, the head detached and struck him.  He alleged that this was caused by a design defect.  The defense asserted that the cause was misuse.

The decision begins:

“If I had four hours to chop down a tree, I’d spend the first two hours sharpening the axe.”

-Aphorism incorrectly attributed to Abraham Lincoln. See https://quoteinvestigator.com/2014/03/29/sharp-axe/.

One issue turned on the qualifications of the plaintiff’s expert on liability. Another was the reliability of his testimony.

This post looks only at the expert’s use of ChatGPT.  The court found “no issue” with Mr. Lehnert’s use of GenAI, writing:

Federal courts have grappled with the appropriateness of an expert’s use of artificial intelligence to form opinions, and the validity of AI as a research tool in litigation more broadly. See Kohls v. Ellison, No. 24-CV-3754 (LMP)(DLM), 2025 WL 66514, at *5 (D. Minn. Jan. 10, 2025) (excluding expert testimony when the expert’s affidavit contained ChatGPT-generated references to non-existent academic articles)….

In Kohls, the expert’s “citation to fake, AI-generated sources in his declaration … shatter[ed] his credibility with th[e] Court” such that his testimony would not be reliable as required by Rule 702 and Daubert. 2025 WL 66514, at *4. However, the Court emphasized that experts can use “AI for research purposes” given its “potential to revolutionize legal practice for the better.” Id. Daubert issues arise only “when attorneys and experts abdicate their independent judgment and critical thinking skills in favor of ready-made AI-generated answers.” Id. [emphasis added].

The Ferlito court explained:

Here, there is little risk that Lehnert’s use of ChatGPT impaired his judgment regarding proper methods for securing the maul’s head to its handle. The record from the hearing reflects that Lehnert used ChatGPT after he had written his report to confirm his findings, Tr. at 46, which were based on his decades of experience joining dissimilar materials, Tr. at 12. During the hearing, Lehnert professed to being “quite amazed” that the “ChatGPT search confirmed what [he] had already opined.” Tr. at 47. On re-direct, Lehnert reiterated that he did not rely on ChatGPT:

Q: Now, the other items that you have consulted and listed, [including] ChatGPT … those aren’t things that you relied upon in reaching your conclusions and opinions, correct?

A: Correct.

Tr. at 67. There is no indication that Lehnert used ChatGPT to generate a report with false authority or that his use of AI would render his testimony less reliable. Accordingly, the Court finds no issue with Lehnert’s use of ChatGPT in this instance. [emphasis added].

The trial testimony that was cited by the court is not available on Westlaw.  A portion of the expert’s deposition testimony follows:

Q. And under that, you refer to ChatGPT; is that correct?

A.  Correct.

Q. Are these the reference materials that you relied upon on page 7 of your expert report?

A.  Yes. [emphasis added].

Later testimony was:

Q.  Okay. I’d like to go back to what we marked as Defendant’s Exhibit 3, which is that Excel spreadsheet. Again, I want to talk a little bit about the materials that you relied upon or you identified in connection with your report. You identified ChatGPT as a resource that you utilized in connection with your report, correct?

A.  I’ve identified that, but I have to qualify that it was more of a — since I — I wanted to show, and that’s what I’ve done here, what is a collection of common knowledge relative to this subject. And that’s what ChatGPT does, it collects all the information. And I thought it was kind of an interesting exercise that I’d ask at this question. And so when you look at the universe of information that ChatGPT collects and then look at the response that it gives, I thought that very germane to this issue.

Q.  Did you — did — was this the free service of ChatGPT or a paid subscription?

A.  Free service.

Q.  Did you do anything to verify the content of the response that you were given by ChatGPT?

A.  No.

Q.  No independent research to verify the response that ChatGPT gave you?

A.  No.

Q.  Okay. Did ChatGPT provide you any sources where they got their information from?

A.  I don’t recall. I didn’t look for that.

Q.  Okay. You just did a search and this is what came up?

A.  That’s correct.

Q.  Okay. Have you ever used ChatGPT in connection with issuing an expert report previously?

A.  No, I haven’t.

Additionally, the expert stated in deposition: “And my own — my intent on putting all of this reference material together was, I thought very interestingly summed up in that ChatGPT common knowledge.”

A final pretrial conference is scheduled for November 19, 2026.  Docket Entry No. 70 (9/8/2026).

In Her Honor’s discussion of the Ferlito case, K.B. Forrest, New York Practice Series, §79.15. “AI and the courtroom—Federal approach to AI-related evidence and proposed rules” (Oct. 2025), Judge Forrest notes that New York applies the Frye standard and: “By contrast, in Kohls v. Ellison, [2025 WL 66514, at *5 (D. Minn. 2025,] a federal court excluded an expert declaration after learning that the expert had relied on an AI tool to draft portions of the report, including fabricated legal citations. The court held that the expert’s failure to verify the accuracy of the AI’s output fatally undermined the reliability of the testimony under FRE 702, and illustrated the danger of substituting machine output for expert reasoning.”

Judge Forrest wrote:

Taken together, these cases illustrate the emerging contours of permissible AI use under the FRE. Courts may tolerate limited use of generative AI for secondary verification, provided the expert retains independent judgment and applies reliable methods. But experts who defer to AI without scrutiny—or use it in lieu of personal expertise—risk exclusion under FRE 702.

A future post titled “Are an Expert’s A.I. Prompts Discoverable?  Maybe,” will discuss Villanueva v. Las Vegas Metropolitan Police Dept., 2026 WL 2942348 (D. Nev. Sep. 29, 2026).

In United Assoc. National Pension Fund v. Carvana Co., 2026 WL 2979494 (D. Ariz. Oct. 5, 2026), responses to contention interrogatories became due shortly after the responding party had received substantial discovery.  The court wrote: “Given the imminent fact discovery cut-off in this action, Plaintiffs are in a position to meaningfully respond to Defendants’ contention interrogatories.”

“The purpose of discovery is to make trial less a game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest extent possible, …and to narrow and clarify the issues in dispute.… In theory, the discovery process should be cooperative and largely unsupervised by the district court…. However, where theory does not reflect real[i]ty—such as when disclosures aren’t made or cooperation breaks down—Rule 37 provides the proper mechanism to compel the disclosure of materials from a party involved in the litigation.” Id. (cleaned up).

The United Assoc. National Pension Fund court wrote:

Contention interrogatories are governed primarily by Rule 33(a)(2), which provides that the court “may order that a contention interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” …. The purpose of contention interrogatories is to narrow the issues that will be addressed at trial and to enable the propounding party to determine the proof required to rebut the respondent’s position…..  The Courts generally approve of appropriately timed contention interrogatories as they tend to narrow issues, avoid wasteful preparation, and, it is hoped, expedite a resolution of the litigation.

While courts are reluctant to allow contention interrogatories when the responding party has not yet obtained enough information through discovery to respond, courts recognize that contention interrogatories served after substantial discovery is complete may be appropriate…. This is because the responding party is in a position to provide meaningful answers, their responses would advance the litigation by pinning down issues, and would mean that the party requesting responses would not be left in the dark regarding the responding party’s positions…. Of course, prematurely issued contention interrogatories need not be answered then and there, … but, after discovery has become substantially complete, contention interrogatories become ripe for response….  Thus there is considerable recent authority for the view that the wisest general policy is to defer propounding and answering contention interrogatories until near the end of the discovery period.

Id. at *2 (emphasis added; cleaned up).

The United Assoc. National Pension Fund court found “that requiring responses to Defendants’ contention interrogatories now as opposed to later is warranted based upon the facts of this case and the aforementioned case law. The instant action is not new. This is not a situation where the parties are still attempting to ascertain the ‘lay of the land’ for discovery. No, this case is nearly four years old, with all parties engaging in an aggressive discovery campaign to support their claims or defenses. Based upon the fact that fact discovery closes today, it is not an impermissible assumption to conclude that Plaintiffs are in a position to meaningfully answer Defendants’ contention interrogatories. Moreover, requiring responses to contention interrogatories on or near the deadline for fact discovery is eminently proper considering the aforementioned case law. Finally, the Court finds that compelling Plaintiffs to respond now as opposed to nearly a month later would not inflict the substantial prejudice which Plaintiffs have opined of.”  Id. at *3.

This blog was initially posted on  Electronic Discovery Reference Model.

What just happened? Another incident has taken place that illustrates the need to be careful what you tell AI. A Florida woman is facing felony charges after she used Claude as a diary and allegedly wrote that she planned to “shoot up” the Sheriff’s office. After a human reviewer examined the statements, they were reported to police.

According to the arrest report, [name deleted], of Bonita Springs, Florida, wrote on September 26 that she would attack the Sheriff’s office. She later said that she uses Anthropic’s chatbot like a “diary.”

Mr. Thubron wrote that “Claude’s safety systems flagged the entry and it was escalated to a human reviewer. After deciding it was a credible threat, the reviewer reported it to law enforcement.”

The Techspot article adds:

The latest incident is another reminder to think before you enter something into a chatbot that could get you into trouble. It’s certainly not a private diary whose contents are for your eyes only.

Reports last month revealed that human contractors reviewing Microsoft Copilot’s image editor can see users’ prompts, uploaded photos and AI-generated edits. Documents show that some of those assignments contain sexual, disturbing or potentially illegal material, though the reviewers are not there to flag the content – only to assess whether the output is accurate.

See Policies & Terms of Service | Anthropic Privacy Center  (“We reserve the right, at our sole discretion, to report information from or about you, including but not limited to Inputs, Outputs, or Actions to law enforcement.”).

A recent article, Amanda Robert, “Shared Responsibility” (ABA Journal Fall 2026), 19, states that “Judges are increasingly faulting lawyers who fail to point out AI-generated fake citations in their opponent’s filings.”  The article states that one court wrote that it “should not be left as the last line of defense against citations to fictional cases in briefs.” [citation omitted].

However, Ms. Robert quotes an attorney who states that the Model Rules of Professional Conduct that justify sanctions against the citing attorney, do not apply to an attorney who has not signed the filing.  This difference has led to a different result.

Ms. Robert states that “[i]n at least two cases, judges refused to award attorney fees or grant relief to counsel who didn’t bring AI-induced errors to their attention.” She reports that courts have used “increasingly ‘stronger language’” in admonishing “non-offending counsel.” [citation omitted].

One attorney is quoted as stating: “This is requiring counsel to continue to respond to all arguments in all cases, and by dong that, you should be able to identify cases that just don’t exist at all….”

See generally, Litigant Forfeited Claim that Court Erred by Relying on Hallucinated/Fictional Cases(Mar. 11, 2026).

Mr. Chu’s corporate electronic devices and iCloud accounts were seized pursuant to a search warrant.  He was formerly the CEO of Tricolor Holdings, Inc.  He asserted attorney-client privilege and work product protection to the materials. The government argued that Chu “had no reasonable expectation of privacy” in his use of Tricolor electronic devices, accounts, or systems.  It also made a waiver argument as to other ESI that is not addressed here.

Mr. Chu asserted privilege as to 1,355 documents.  The Chu court looked at precedent and also to Tricolor’s information governance policies and their implications. Id. at *2.  It wrote:

Before the widespread use of electronic devices, the Supreme Court addressed an employee’s reasonable expectation of privacy in personal documents kept in the employer’s space within the employer’s office. In O’Connor v Ortega, 480 U.S. 709 (1987), the Court concluded that the head of a hospital’s professional education department had a reasonable expectation of privacy in personal papers he kept in a desk and file cabinets used exclusively by him. The Court, in part, relied on the absence of a company policy prohibiting the storage of personal property in desks or file cabinets, although it noted that “the absence of such a policy does not create an expectation of privacy where it would not otherwise exist.” Id. at 719.

The Chu court also looked to more recent precedent, including In re Asia Global Crossing, LTD, 322 B.R. 247, 257–58 (Bankr. S.D.N.Y. 2005), to identify the “factors [that] have been applied to claims of privilege in [personal] communications stored or transmitted on an employer’s system….”  Those factors are:

(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

Applying those principles, the Chu court first looked to the Tricolor Handbook. Tricolor had a limited personal use policy and its handbook added: “Users have no legitimate expectation of privacy in regard to their use of the Tricolor Auto Group, LLC systems.”  The handbook gave Tricolor a right of review—however, it was limited to specific reasons.  Additional facts are set out below, as the court applied those factors.

THE FIRST FACTOR:  “As to the first Asia Global inquiry, Tricolor does not have a policy banning personal use of its systems. To the contrary, it generally permits personal usage, albeit with the limited exception that it must not ‘hinder performance of job duties or violate any other Company policy.’ The Court concludes that Chu’s use of the Tricolor computer systems to communicate with lawyers on personal matters was not a violation of the Tricolor policy.”  Thus, that factor weighed in favor of Mr. Chu.

THE SECOND FACTOR: “As to the second Asia Global inquiry, there is no evidence in the record of Tricolor actually monitoring employees’ use of its systems. Some courts have found that where a company warns employees of its right to monitor employee systems but does not do so, employees may assume system is secure in using the system for personal matters….  But these cases are factually dissimilar. Rather than a broad and generalized right to monitor, Tricolor’s policy lists specific reasons why it may ‘obtain communications within the systems without notice to users,’ including ‘but are not limited to; maintaining the system; preventing or investigating allegations of system abuse or misuse; assuring compliance with software copyright laws; complying with legal and regulatory requests for information; and ensuring that Company operations continue appropriately during an employee’s absence.’ …  Here the policy was explicit and fulsome, and this Court similarly concludes that it tilts the factor against Chu.”

THE THIRD FACTOR:  “The third factor focuses on whether third parties have a right to access the Tricolor systems. While there is no evidence of such right of access granted to a third party… [i]f the policy states that materials could be turned over to regulators, the third factor may be fulfilled…. Here, Tricolor disclosed that it may access the system to comply with ‘legal and regulatory requests for information.’” On the facts presented, Tricolor’s access to Mr. Chu’s communications were to comply with a grand jury request.  “Chu was the CEO of a corporation that obtained large loans from heavily regulated financial institutions and offered asset-back securities to investors. He would have had a heightened awareness that his communications on Tricolor systems could wind up in the hands of a prosecutor or regulator.”

THE FOURTH FACTOR:  “The fourth factor focuses on the individual’s knowledge of the company’s monitoring or access policies.”  Mr. Chu had signed an employment agreement stating that he would follow all applicable company policies. “The Court concludes that the Handbook was applicable to Chu, and he knew or was willfully blind to its contents….  The fourth factor — whether the corporation notified the employee, or the employee aware, of the use and monitoring policies — weighs against the reasonable expectation privacy in communications on the Tricolor system.”

ADDITIONAL CONSIDERATIONS:  Mr. Chu raised an additional argument.  During a 2023 internal review, “he secured an agreement limiting the scope of the investigators’ search, lest his privileged communications be compromised.”  That argument failed, with the court writing:

The incident cuts both ways. It shows a willingness on the part of Tricolor, of which he was CEO, to accommodate his reasonable privacy requests. But it also shows that Chu knew his personal emails on the Tricolor system could be the subject of an internal investigation and that investigators needed the prior authorization of the Tricolor Audit Committee before sharing their proposed search terms and custodians with him….  He could request a limitation on the scope of search, which was granted by Tricolor in this instance, but he had no right to such a limitation.

In concluding that Mr. Chu had not shown a reasonable expectation to privacy in the communications on the company system, the court wrote: “Finally, the plain text of the Tricolor Handbook also undermines Chu’s privilege assertion: ‘Users have no legitimate expectation of privacy in regard to their use of the Tricolor Auto Group, LLC systems.’”

The Chu court also addressed waiver by turning a Tricolor laptop over to an investigative firm that had been retained by counsel to a Special Committee.  Id. at *4-5.

I have suggested that Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024).  Chu presents the opposite situation—use of company systems for private communications. Information Governance–Employee’s Use of Employer’s Email for Privileged Communications (Jul. 10, 2026);  Use of Personal Email by Government Personnel (Aug. 26, 2026).

My personal opinion is that, in the real world, as a practical matter, employees are going to use business devices for some personal communications. An employee sitting in the middle of a meeting that is running late, is likely to text their spouse or partner on a business cell phone: “Hey, can you pick up the child today—I’m running late?”

A middle-of-the-road policy is to permit employees to use business devices for non-privileged and non-confidential personal communications, provided, however, that privileged or confidential communications, such as personal, legal, accounting, pastoral, or medical communications are not permitted. Similarly, spousal communications are permitted on routine matters, but there would be no spousal privilege.

This blog was initially posted on  Electronic Discovery Reference Model

Plaintiff’s employment claims arose out of her termination as a clinical nurse. A series of interactions occurred, resulting in an investigation covering interviews of all staff and “review of video.”  “During and around the time of the two rapid responses, Plaintiff had a verbal interaction or altercation with another nurse, Gabrielle Spalt, and the two nurses have differing accounts of their encounter.”

Defendants moved for summary judgment.  The Court found no genuine dispute of material fact and granted the motion.

Plaintiff argued that summary judgment should be denied, in part, based on “potential spoliation of video evidence relevant to Plaintiff’s claims.  Specifically, Plaintiff contends that Defendants failed to preserve video footage of the interaction between her and Ms. Spalt during the rapid response events on September 16, 2023.”

Defendants relied on their information governance policy.  They told Plaintiff that the video footage was “retained for 30 days and was over-written pursuant to Defendants’ policy prior to notice of any legal claim and obligation to preserve footage.”

Plaintiff replied “that Defendant was on notice to preserve the video as of September 2023 because of the final written warning issued to Plaintiff and the specific request Plaintiff made to view the video during the investigation of the incident.”

Defendants responded “that there was no reason to anticipate litigation until Defendants received notice of Plaintiff’s filing of charges with the EEOC, in March 2024…. They contend that, pursuant to internal policy, the video footage from the September 16, 2023, incident was overwritten 30 days later, on or around October 15, 2023—well before they received notice of litigation.”

The Court wrote that “[s]poliation refers to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Id. (cleaned up; citation omitted).  The “mere existence” of a dispute does not trigger the duty to preserve.  The duty arises somewhere between knowledge of a dispute and direct, specific threats of litigation: “A non-exhaustive list of examples of events triggering the duty to preserve include the receipt of a demand letter, a request for evidence preservation, a threat of litigation, or a decision to pursue a claim.” Id. (cleaned up; citation omitted).

Applying those principles, the Court explained:

Plaintiff cites no authority to support the proposition that her request to see the video of her interaction with Ms. Spalt and the final warning issued to her in September triggered a duty to preserve. Plaintiff did not issue any demand letter to Defendants, request preservation of the video, or threaten litigation at any point before the video was over-written in the normal course of Defendants’ business. In the grievance she submitted to HR in September 2023, Plaintiff alleged that video footage would show that she was not on her phone when Ms. Spalt confronted her, but the grievance contains no request for preservation or threat of litigation…. The disciplinary action and any request Plaintiff made to view the video footage could not, by themselves, make litigation reasonably foreseeable. The case upon which Plaintiff relies in her opposition indicates, contrary to her position, that the duty to preserve began when Defendants learned about Plaintiff’s filing with the EEOC. See Membreno, 338 F.R.D. at 72 (concluding that the defendants “should have reasonably anticipated litigation…when they received notice of” the plaintiff’s filing with the EEOC). Here, Plaintiff did not file a charge with the EEOC until March 2024, long after the video footage at issue would have been over-written in the normal course. Thus, Plaintiff fails to establish any entitlement to relief based on spoliation of evidence.

Summary judgment followed.

The threshold inquiry for sanctions under Fed.R.Civ.P. 37(e) is whether “electronically stored information that should have been preserved in the anticipation or conduct of litigation” was “lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery….”  Here, Plaintiff failed to cross that threshold.

The Court wrote:

Plaintiff argues that Defendants mishandled video evidence. However, one of Defendants’ employees reviewed the video footage of the September 2023 incident and concluded that it was “tough to see much” and that she “had a difficult time seeing anything in the nurses station.” … That employee did not see what Plaintiff alleged, namely that Ms. Spalt came towards Plaintiff “pointing her finger at her and yelling at her.”

The Court did not address whether or not this showed a lack of prejudice. If so, it would have precluded Rule 37(e)(1) sanctions.