Counsel blamed the hallucinations on the use of Spellbook AI. On its website, Spellbook describes itself as: “The first AI system that powers contracts end-to-end….”

In summary, respondents notified petitioner that they found hallucinated authorities in connection with the Petition. Petitioner denied the allegation, “doubled down,” and counter-punched with a threatening response.

Petitioner later amended the Petition and admitted to hallucinations that it claimed were due to its use of Spellbook AI.  The court imposed monetary sanctions, awarded attorneys’ fees, and struck the amended Petition, writing that, what the court described as “fraud,” cannot be amended away.  The court appeared to leave open the door for a bona fide amendment.

THE “GLASS HOUSES” PRINCIPLE

Counter-punching may be problematical.  Another court recently advised: “A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. Plaintiffs did not throw stones from a glass house at another glass house. They stood inside a house made entirely of glass, pointed at the brick house across the street, and declared that structure the fragile one…. Each charge, however, was not merely overstated, but rather exactly backwards.”  Glass Houses Proverb—Don’t Throw Stones and Invective (Jul. 14, 2026)(citation omitted).

FACTS AND THE COUNTER-PUNCH

In this challenge to an administrative decision, the court set the stage as follows:

Unfortunately, shortly after commencement, issues regarding the contents of the petition and accompanying memorandum of law became the subject of litigation rather than the underlying merits. The short yet storied history of the case is as follows. On May 15, 2026, counsels for respondents informed counsel for petitioners, Thomas A. Bizzaro, Esq., that the petition and accompanying memorandum of law contained a myriad of false citations to legal authority using artificial intelligence (”AI”). A more detailed description of the hallucinated citations is contained infra. After discovering the AI errors, respondents requested that Mr. Bizzaro respond with an explanation and/or withdraw the petition; otherwise, they would notify the Court and seek sanctions, including striking the pleadings. Mr. Bizzaro responded to counsels with an eight-page letter, the sum and substance of which was a categorical denial. Mr. Bizzaro stated that his firm undertook a full citation audit in response to respondents’ concerns. His firm identified seven issues which were minor citation and misapplication issues and did not involve fabricated authority. Mr. Bizzaro stressed that the errors were inadvertent and that opposing counsels failed to identify any specific erroneous citation. He rejected respondents’ request that he withdraw the petition as well as any threat of sanctions. In fact, Mr. Bizzaro threatened to seek sanctions and attorney’s fees himself, stating that the unfounded accusations by respondents violated Section 130-1.1 of the NY Compilation of Codes, Rules, and Regulations (”NYCRR”). [emphasis added].

The parties agreed to meet and confer. However:

Prior to that meeting, Mr. Bizzaro filed a letter to the Court, explaining all of the foregoing and annexing the correspondence between the attorneys. In conclusion, Mr. Bizzaro requested a conference with the Court. Thereafter, the Court learned that the May 18, 2026 meeting between the attorneys was unsuccessful. On May 18, 2026 and May 19, 2026 respondents filed additional letters to the docket, which laid out the purported fraud contained in the petition.

THE ADMISSION AND DEFECTIVE AMENDED PETITION

Respondents demanded withdrawal of the petition.  Mr. Bizzaro refused, offered to pay reasonable attorneys fees, and “informed the respondents he would be filing an amended petition and proceeding with the action….”

After a court conference, Mr. Bizzaro filed an amended petition. However, the court wrote: “A review of the 55 page petition reveals that it is essentially the same petition, which was filed upon commencement, less citation to the purported fraudulent legal authority as well as a few additional minor changes.”

Petitioner’s attorney also wrote to the court and the “letter conceded for the first time that the original petition contained ‘AI-citation errors.’ …  Mr. Bizzaro stated that he offered to reimburse respondents for their reasonable attorneys’ fees and costs in connection with the ‘letter exchanges and virtual conference.’”

Next, “Respondents both informed the Court of their intention to file a motion to strike the pleadings and for sanctions. Mr. Bizzaro responded to the foregoing by filing correspondence on June 2, 2026. Petitioner’s letter argues that there was no prejudice suffered as a result of the citation errors, that the amended petition was filed as a matter of right, and that his offer to reimburse respondents for fees and costs incurred in connection with the letter exchanges and the conference remains.”

THE COURT HEARING

The court held a hearing:

At the hearing, Mr. Bizzaro conceded that the underlying commencement documents contained citations to “hallucinated” quotations. He explained that his firm, of which he is the sole principal, uses Lexis and Westlaw. The subscription to Westlaw contains certain AI tools which are linked to Microsoft Word. The program, “Spellbook AI,” is a tool embedded into Microsoft Word. It was represented to Mr. Bizzaro that the AI-tool enhanced writing and detected drafting errors. He was informed that Spellbook AI did not provide legal authorities or citations to work product, but only enhanced drafting. Mr. Bizzaro reviewed the petition prior to commencement but did not “re-run a cite check,” after accepting the changes made by Spellbook AI. Mr. Bizzaro was apologetic and explained the steps he and his office have taken to ensure this does not happen again. Mr. Bizzaro has discontinued his subscription to Spellbook AI and has changed his office policy so that he is the only individual permitted to use AI features. Additionally, Mr. Bizzaro informed the Court that he has registered with the National Academy of Continuing Legal Education for classes dealing with AI issues in the court system. [emphasis added].

The court described the use of AI as “all but unavoidable.”  However, it also wrote, misuse has become a “reoccurring problem….” It found that “petitioners included quotations from at least five otherwise legitimate cases which were either entirely fabricated, or which were altered from their original versions.” It added: “The nationwide imposition of monetary sanctions in similar cases ranges from mere warnings to tens of thousands of dollars….”

APOLOGIZING AFTER “DOUBLING DOWN” & COUNTER-PUNCHING

Instead of counter-punching, the court suggested that Petitioner should have gone “hat in hand” to Respondents.  The court wrote that, while five citations were inaccurate, the remainder were “legitimate,” and Mr. Bizzaro “apologized at length….”  He had explained the error and taken remedial action.

Nevertheless:

Importantly, when Mr. Bizzaro was confronted by counsel for respondents about the fabricated cases, he chose to essentially “double down” rather than to admit to the mistake. Mr. Bizzaro contends that he never denied the use of AI and his response was merely a “preliminary reply under extreme time constraints.” The Court disagrees. The May 16, 2026 response from Mr. Bizzaro was a detailed eight-page letter where counsel argued that there were no fabricated, hallucinated, or erroneous quotations or citations identified by respondents, that he had undertaken a detailed review of all citations, and essentially only identified what he labeled “discrete errors.” Mr. Bizzaro then demanded that respondents identify any inaccuracies and bring them to his attention. Mr. Bizzaro concluded by stating that the accusations levied and the threat of sanctions, absent any proof of wrongdoing, raised an issue of respondents’ good faith and frivolous conduct which may warrant an application by him for sanctions and attorney’s fees. The Court mentions the foregoing only to emphasize that Mr. Bizzaro’s time would have been better spent combing his petition, which very well may have eliminated the need for his letter. [emphasis added].

It added:

In any event, what ensued was months of back and forth between the parties, a “meet and confer” with all counsels, extensive letter practice to the Court, two court appearances, and a substantial amount of work undertaken by all parties. This could have been easily avoided had Mr. Bizzaro acknowledged the fabrications and approached the dispute with hat in hand. Indeed, as discussed supra, Mr. Bizzaro threatened to request sanctions upon the respondents when they broached the issue of these hallucinations. For this reason, the Court finds that Mr. Bizzaro’s conduct was egregious and qualifies as a more significant violation of the Rules of Professional Conduct than it would otherwise. [emphasis added].

MONETARY AWARD

The court awarded a $5,000 sanction plus $10,000 for attorney’s fees, explaining:  “Respondents identified the fabrications, the parties engaged in significant letter practice, which included considerable research, the parties appeared before the Court for a conference on May 19, 2026 and a hearing on July 22, 2026, the respondents filed their respective motions to dismiss the petition and amended petition, and the petitioners filed their opposition papers.”

DENIAL OF THE AMENDMENT: CAN’T “AMEND AWAY” HALLUCINATIONS

It then turned to a novel issue, specifically, respondents’ dismissal argument—that the original petition was defective and the amended petition was essentially a cut and paste, minus the erroneous citations.

Generally, the pleadings rule provides that an amended complaint supersedes the original…. The question is whether this principle should apply where the underlying petition is essentially permeated with fraud and petitioner seeks to amend solely to cure those defects. This Court’s research reveals that this question, under these circumstances, has not been previously addressed. Specifically: can a petitioner amend his or her pleadings as a matter of right to correct defects in the underlying petition where the allegations contained therein were at least partially based upon hallucinated citations to legal authority? This Court concludes that the principle does not apply where the original pleading is permeated with fraud, and the fraud cannot simply be amended away. [emphasis added].

The court found that the first pleading was permeated by fraud. “Petitioners used multiple bogus quotations from the case and submitted a lengthy argument in support based thereon….  Accordingly, after reviewing the cases and the original pleadings, the Court can only conclude that a significant portion of the legal arguments which formed the cornerstone for this specific proceeding were based upon fraudulent legal authority, such that the pleadings were permeated with fraud.”

It then wrote: “The next question the Court must determine is whether petitioners are entitled to amend the petition to remediate the defects. This Court finds that they are not.” [emphasis added].  It cited a prior decision in which the court found sanctionable conduct and rejected a request for a “redo.” It wrote:

Aside from striking the amended petition as a sanction, the Court finds that permitting the petitioners to “amend away” the fraud here would be an improvident exercise of discretion for two reasons. The first reason is that the fraud and the pleadings are inseparable. This is not a matter where a party merely cited to a few fictitious cases. Rather, a significant foundation of this Article 78 proceeding was premised on the reliance of hallucinated quotations and bogus legal authority. Moreover, the amended petition is essentially a replica of the original petition, less the hallucinated quotations. The amended petition includes assertions premised upon the fabricated legal authority. Second, public policy bars the amended petition from standing. Permitting the amendment would effectively reward careless legal drafting, and allow litigants to include false, misleading, and inaccurate allegations in their pleadings with the expectation that they could simply correct the defects through an amendment. As an aside, this Court also gives credence to the respondents’ argument that permitting the amendment would require the respondents and the Court to essentially “Frankenstein” the 55-page petition to determine which allegations are based in legitimate law and which are not. This is an undue burden that the Court refuses to impose. [emphasis added].

The court struck the amended petition, but declined to dismiss with prejudice.  Presumably, this left open the possibility of a new amendment.

ONE LAST ISSUE

The court addressed one last issue: “In light of the foregoing, the Court need not reach the issue of the assertion that the signatures contained in the amended verified petition were falsely notarized. Briefly, the original verified petition includes a signature of petitioner Bobby Zargari, which was notarized by Mr. Bizzaro’s legal assistant on May 8, 2026. The amended verified petition dated May 20, 2026 is also signed by Zargari and notarized by Mr. Bizzaro’s legal assistant. A side-by-side review of the signatures reveals that they appear to be identical, and at the hearing petitioner admitted to reusing the original signature. Under ordinary circumstances, the Court would have set this matter down for a hearing on this specific issue. However, after reviewing the papers and addressing the matter on the record, the Court declines to render a decision on the issue of fraud regarding the notarization in light of its determination to issue sanctions and strike the petition and amended petition.” [emphasis added].

CONCLUSION

The denial of the right to amend in Youssian is not a unicorn.  For another decision denying amendment after disclosure of hallucinations, please see A Request to Refile Brief to Correct Hallucinations Was Denied (Aug. 30, 2026)(“we are denying the motion to withdraw the Opening Brief….”).

Sometimes, there is a duty to “’fess up.”  In a different context, please see Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  Lack of Candor is “Always a bad idea.” (Jul. 13, 2026).

For a discussion of counter-punching in a different context, please see Rule 11 Sanctions for Impugning Character of Opposing Counsel (Apr. 20, 2022); Fraudulent or Unsupported Allegations of Misuse of A.I. Can be Sanctionable (Jun. 25, 2026); Conclusory (False?) Accusations of Using False Case Citations Are Sanctionable (Apr. 12, 2026).

What follows is a somewhat lengthy Opinion, which the Court deemed prudent to write in order to reaffirm the duties incumbent on parties and their attorneys during the discovery process, especially in the context of electronic discovery.

In Yas Caribe, eight requests for production and four interrogatories were in dispute.  The issue that this blog post focuses on is unsupervised self-collection by Defendants.  “[T]he EEOC highlights that several of its document requests entailed the collection of ESI, but maintains that defendants’ collection efforts were unsupervised by counsel and demonstrably incomplete.”

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

EEOC challenged the sufficiency of Defendants’ search for documents.  Abdullah Yassin admitted that he failed to preserve ESI and failed to review his own the electronic devices, including email and texts, or those of Khalid Yassin, the alleged harasser.  Further, he had not directed any of his employees to do so.  And, the EEOC claimed “that deposition testimony revealed that relevant personnel files and employment-related documents may be stored in the offices of a non-party entity owned and operated by Abdullah Yassin, called Yassin Unlimited Drug Corp. d/b/a Droguería San Juan,” and none of this stored information had been disclosed. Id. at *5.

The EEOC sought two types of relief. First, it asked that “Defendants be required to amend all of their Responses to EEOC’s [document requests] to clearly state: (1) whether responsive documents exist; (2) what steps were taken to locate responsive documents; (3) whether any documents are being withheld.”  Second, it asked for forensic inspection of the cell phones of Abdullah Yassin and Khalid Yassin, and a re-opening of discovery.

Defendants responded that Abdullah Yassin testified that he had not deleted anything and had no responsive documents.  They asserted that the messages EEOC relied on to show insufficient production had eventually been produced.  Further “defendants produced a ‘Messages Search Certification’ subscribed by Abdullah Yassin to the effect that he personally supervised Khalid Yassin’s search of his cellphone for responsive messages exchanged with Ms. Wilkerson, and further produced three responsive pages.”  Finally, in what I suggest is an incorrect position:

[D]efendants’ attorney argued in response to the motion to compel that directly supervising any search for responsive documents in his client’s files would make him a “potential witness” and would be “ethically inappropriate.”

The EEOC challenged the sufficiency of the “Messages Search Certification” and it had obtained the messages independently from Ms. Wilkerson, not from Defendants. Id. at *10-11.

Discovery on Discovery

There was a threshold issue.  The court described the EEOC’s position as a request for “discovery on discovery.”  This is sometimes called “satellite discovery” or “culpability discovery.”  The court enunciated several principles governing that process.

“Discovery on discovery has been described broadly as ‘any discovery seeking information regarding a party’s preservation, collection, and retention efforts.’ …  Although some trial courts have considered these types of discovery requests to be outside the scope of Rule 26(b)(1), others have not.” Id. at *6 (citations omitted).  The court continued:

In any case, the general structure of the discovery process drawn into the Federal Rules of Civil Procedure strongly implies that such discovery should be the exception, not the rule. “The federal discovery system in some ways resembles an ‘honor system,’ ” where the party seeking discovery “must generally ‘rely on the representations of the producing party or its representative that it is producing all responsive, relevant, and non-privileged discovery….’  Casting doubt on a responding party’s efforts to provide full and complete discovery responses is by no means taboo, but anyone attempting to obtain a remedy on that ground must overcome the default assumption of good-faith compliance. This is even more so when the attempted second-order discovery targets a person’s electronic systems or devices….”

Id. (emphasis added; citations omitted).  Here, however, the threshold was crossed.  For more information about “discovery on discovery,” please see the citations at the end of this post.

Defendants’ Efforts Were Insufficient

The court wrote: “Defendants’ initially deficient response to the document request and Abdullah Yassin’s deposition testimony as to the inadequacy of his search raise substantial doubts as to defendants’ compliance with their discovery obligations.”

While a single missing text message does not normally justify discovery on discovery, id. at *11, here there was also testimony that Abdullah Yassin had failed to preserve and collect documents related to the alleged harassment, had failed to search his own email and text messages, had failed to search the electronic devices of relevant custodians, including the alleged harasser, and had not instructed anyone else to do so.  Id. at *11.  Further, while the EEOC had suggested search terms that the court viewed as reasonable, “Defendants did not describe what, if any, search terms they used to find responsive documents….” Id.

Self-Collection Should Be Supervised by Counsel

With limited exception, the requirement that an attorney supervise a client’s collection is well established:

• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011);
• Losey, “Another ‘Fox Guarding the Hen House’ Case Shows the Dangers of Self-Collection” (Mar. 20, 2011).

There is contrary authority, which may be limited to a situation where there is no indication that relevant information has gone missing. Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021).

Further, there are defensible ways to conduct self-collection.  “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024). However, that method was not used in Yas Caribe.

Defendants’ Attorney’s Argument That Supervising a Search Would be Improper

Defendants’ attorney in Yas Caribe wrote:

It is my understanding that being with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has, complies with a “reasonable inquiry” requirement. Otherwise, a counsel’s active search for those records will make a counsel a potential witness if a client misses a text message or for any other reason. I believe that my discussing every question or discovery request with my witnesses, while they are answering, producing documents, or giving instructions to their secretaries or assistants to look for and produce exactly what was asked for, is involvement that complies with Rule 26(g)…. And how would I remember what I saw? How would I know if they are showing me everything, or if messages were deleted, or if they have changed telephones? … Still, I believe it is inappropriate for me to get involved in the witnesses’ telephones, computers, etc., beyond what I already have.

As noted above, he argued that supervising his client’s collection would make him a “potential witness” and that it would be “ethically inappropriate.”  Id. at *6.  In my opinion—and more importantly, the court’s opinion—he was incorrect.

Supervising a Client’s Search Does Not Make an Attorney a Witness

In response to the argument that supervision would make the attorney a witness, the court wrote: “The Court first notes that neither supervising nor assisting a clients’ document search converts an attorney into a witness in a case. In fact, such supervision may be required in appropriate circumstances….  Indeed, the existence, relevance, and discoverability of ESI is one such circumstance that counsels in favor of attorneys exercising diligent supervision over their clients’ efforts to comply with discovery requests….”

Quoting a prior decision,[1] it added: “Attorneys have a duty to oversee their clients’ collection of information and documents, especially when ESI is involved, during the discovery process. Although clients can certainly be tasked with searching for, collecting, and producing discovery, it must be accomplished under the advice and supervision of counsel, or at least with counsel possessing sufficient knowledge of the process utilized by the client. Parties and clients, who are often lay persons, do not normally have the knowledge and expertise to understand their discovery obligations, to conduct appropriate searches, to collect responsive discovery, and then to fully produce it, especially when dealing with ESI, without counsel’s guiding hand.”

Of course, where there is a prima facie showing of spoliation, an attorney may be compelled to disclose how the litigation hold was implemented and how the search was conducted. The Hon. Paul W. Grimm, M. 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).

Failure to Supervise May Run Afoul of Fed.R.Civ.P. 26(g)

The Yas Caribe court also looked to Fed.R.Civ.P.26(g), the so-called “stop and think” rule:

As to Attorney Mihailovich’s compliance with Rule 26(g)(1)’s reasonable inquiry requirement, his position warrants discussion. As mentioned above, Rule 26(g)(1) imposes on the signer of a discovery request, response, or objection a duty to perform a “reasonable inquiry.” Fed. R. Civ. P. 26(g)(1)….  In the case of a response to a document request, this duty falls squarely on the attorney, whereas interrogatory responses must be signed by both the attorney and the person who answers them. Fed. R Civ. P. 26(g)(1), 33(b)(5). [emphasis added].

The Yas Caribe court added: “An attorney’s failure to adequately guide and supervise a client’s search for responsive ESI may run afoul of Rule 26(g).”  Quoting a prior decision, it wrote: “[A]n attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized.”

Application of Principles to Facts Presented

The court had little trouble rejecting the attorney’s argument on the facts presented:

In this case, such supervision was objectively warranted. Abdullah Yassin testified that he did not perform an adequate search for responsive documents, even when his attorney represented that he was “with a witness while s/he searches for the requested records, explaining to the witness what is requested, verifying that the information is pertinent to the request, and asking the witness to produce everything he has ….”

While, in making an inquiry, the court wrote that an attorney may rely on assertions of the client, that is permissible only “‘as long as that reliance is appropriate under the circumstances.’ 1983 Advisory Committee Notes to Rule 26(g).”  The court added:

A discovery request for ESI in a party’s cellphones and computer systems is a circumstance that triggers an attorney’s need to, at a minimum, understand how a client stores and uses ESI and how and where the client is searching for responsive documents.

As officers of the court, attorneys have a duty to make legally sound arguments and good-faith factual representations to the court. If an attorney does not have sufficient information to know whether his client is being accurate or not in a discovery response, particularly one involving ESI, this duty requires that he or she inquire deeper. “[T]he ethical rules now require attorneys to be competent with technologies such as ESI.” City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, 492 n.2 (N.D. Ill. 2018) (citing Model Rules of Pro. Conduct r. 1.1, comment 8 (A.B.A.)).[2] Attorney Mihailovich should have assumed a more active role in guiding defendants’ search beyond what he described in the opposition to the motion to compel. At the very least, he should have inquired into how and where the searches were being made so that he could give a reasonably informed certification of the thoroughness of what sources were and were not searched. Ideally, he would have discussed and run the keyword searches proposed by the EEOC or a mutually agreed upon version of them. Judging from the subsequent interactions of the parties that are on record, defendants’ position has been to engage in piecemeal corrections to their deficient responses and only when specific deficiencies are revealed by the EEOC’s efforts. This is not the way. [emphasis added].

The court provided “an admittedly extreme example: when attorneys receive documents that have been redacted by their clients and do not know what has been redacted, they cannot responsibly certify that the factual basis for a disclosure is compliant with Rule 26(g)(1).”

The court added that perfection is not the standard of review.  Instead, review is under an objective standard similar to Rule 11.

CONCLUSION

Applying principles of proportionality, the court considered privacy interests related to a forensic copy of the cell phones, and concluded that the burden would outweigh the benefits:

While there is certainly a well-founded suspicion that an adequate search was not carried out, and that defendants thus failed to comply with their discovery obligations, that does not necessarily mean that defendants are withholding responsive documents. After all, defendants represented that they had no messages between Abdullah and Khalid Yassin about Ms. Wilkerson or the alleged sexual harassment incident…, and the messages subsequently produced by defendants matched those in possession of the EEOC. In other words, there is no indication that, as of today, defendants have willfully withheld responsive documents or incurred in spoliation—only that they have not adequately searched for documents that may exist relating to the alleged sexual harassment incident at the center of the EEOC’s complaint.

As such, the request for a forensic inspection was taken “off the table for now” and the EEOC’s alternative request to compel Defendants to run supervised searches was granted.  For example, “defendants are ORDERED to perform an attorney-supervised search of both Abdullah Yassin and Khalid Yassin’s cellphones for responsive communications (email, text messages, call logs, etc.) across all relevant e-mail and messaging platforms/applications for [specified] periods….” As to one search, the response must include “the persons assisting in said searches….”

While the Yas Caribe court addressed several other issues, it stands for the principle that unsupervised self-collection is insufficient, at least where there is a factual predicate showing that the searches were insufficient.

For more information on “discovery on discovery,” please visit:

• The Case of the Missing Lab Notebooks (Aug. 28, 2026);
• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” – E-Discovery LLC (Feb. 19, 2026);
• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (De. 18, 2024);
• The Hon. Paul W. Grimm, M. 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).

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

____

[1] For a discussion of the prior decision, please see Unsupervised Self-Collection Predictably Led to Problems (Jan. 2021).

[2] For an update on the ethical duty of “technological competence,” please see 40th State Adopts a Duty of Technological Competence – Is It a Good Idea? (Mar. 31, 2022); Proposed Changes to the MD Attorneys’ Rules of Professional Conduct Re: AI (Jul. 21, 2026).

In Campbell v. TidalHealth, Inc., 2026 WL 2162749 (D. Md. Jul. 28, 2026)(Austin, J.), the Court wrote: “Campbell denies submitting documents into any generative artificial intelligence tools but admits to using unspecified ‘available tools solely to express [her] arguments in proper legal format, the same way any litigant uses available legal resources.’” Id. at *8.

After cautioning Campell about the use of GenAI, the Court wrote:

In addition, Campbell must ensure that any use of generative artificial intelligence does not violate the stipulated order governing confidential materials…. TidalHealth expresses concern that Campbell violated the February 27, 2026 Protective Order’s prohibition on submitting discovery material to public generative artificial intelligence tools. … see ECF 21 at ¶ 8 (imposing limitations on use of generative artificial intelligence). Campbell denies doing so…. If future filings suggest improper submission of discovery materials to generative artificial intelligence tools, the Court will be more inclined to issue a show cause order and consider sanctions.

Id. at *10 (emphasis added).

These orders are standard of care and are most often entered by consent. But not all orders are created equal and they are not always fair.  I have echoed Craig Ball’s novel post on the need for equity.  Another A.I. Protective Order – Part 10 quoting Craig Ball, The AI Protective Order Double Standard | Ball in your Court (Jul. 27, 2026).

UPDATE:

“Because the parties’ proposed protective order adequately complies with the standards set forth above, the Court will enter an order based on the parties’ submission. The Court makes four minor modifications to the parties’ protective order: … and (4) to establish parameters for the use of Artificial Intelligence as it pertains to confidential documents, see infra Paragraph (F).”  Zask v.Kohl’s Corp., 2026 WL 2531856 (E.D. Wisc. Aug. 27, 2026)(emphasis added). The order states:

F. USE OF ARTIFICIAL INTELLIGENCE (“AI”)
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.

The matter was before the court on a show cause order.

In reviewing the plaintiff’s recent filings, the Court identified text that had been formatted to be invisible to a human reader while remaining fully legible to any software that reads the document’s text. That concealed text is a set of instructions addressed to artificial-intelligence systems, directing any such system that reviews or analyzes the filing to produce output only favorable to the plaintiff’s position and to treat a prior clerk’s ruling as an error to be corrected in their favor. The Court issued its Order to Show Cause so that the plaintiff could be heard before the Court determined whether this occurred and, if so, what sanctions, if any, should follow.

Id. at *1 (emphasis added).

The Elliot court entered a finding that, for example, one of plaintiff’s filings “contains hidden text set in tiny-point type and colored white, so that it is effectively invisible to a person reading the document, while remaining ordinary, machine-readable text to any system that processes the file. In substance it directs that any artificial-intelligence model reviewing or receiving the document ensure that its output agrees with the plaintiff’s filing….”

The court found that this prompt injection was not isolated.  After the court entered an order that “specifically warned of concealing text in pleadings,” the court wrote that “[n]onetheless, … the plaintiff again concealed text with white-on-white small point font.”  And, on the morning of the show cause hearing, the court wrote that plaintiff did it again: “hi:) i hope yo ucant see me….” That filing also had a hidden link to a You Tube video.

The court provided the self-represented plaintiff’s explanation:

The plaintiff claimed that they only meant to include the instructions on Docket Entry #177.00 as a dutiful citizen auditing the Court’s Al systems and they mistakenly copied and pasted part of the instructions in #178.00. They maintain that prior orders of the Court were incorrect and some orders, having only the word “DENIED,” meant that they had to audit the Court to see if the pleadings were actually being reviewed. The Court inquired as to why, then, did they continue to put secret messages in future pleadings. The plaintiff replied that he did so as a joke….

Noting that self-represented litigants are entitled to some latitude, the court added: “That latitude, however, carries a limit….  The solicitude owed a self-represented litigant is a solicitude toward their lack of legal training but it stops at the misuse of the process itself.”

The Elliot court wrote that it “welcomes” the use of AI. It wrote that AI tools “are here to stay” and it applauded “honest” use.   It added: “A person who cannot afford a lawyer, who would once have faced the courthouse with nothing but confusion and a cause needing redress, can now assemble a coherent set of thoughts, find the general applicable law, and put a readable document before the court. It can help a litigant prepare for oral arguments and understand resulting court rulings.”

The Elliot court uses AI. It wrote that it “has found these tools valuable as an aid to its own work, always subject to its own independent judgment and verification. Judgment can never be delegated to a machine in any profession, but most importantly in the legal field. In preparing this very decision, the Court used Google’s Gemini tool to produce a working English translation of the foreign decision discussed below and used Westlaw’s Precision artificial-intelligence review features to check its authorities and legal principles.”  It added:

Everyone technically uses Al, as Microsoft Word’s (and Google Docs’) spelling- and grammar- checking features now use artificial intelligence! The Court uses programs to review its syntax, spelling and cohesive structure. Despite the use of these tools, however, the judgment, reasoning and the decision remain the undersigned’s. The promise of the tools is real, and that promise is realized when a human being remains responsible for the result. [emphasis added].

The court then turned to careless and dishonest use:

Each generation of the legal profession has had to master the tools of its day and to guard against their misuse. Dictation machines, the photocopier, the FAX machine, e-mail, electronic research, electronic filing, and, most recently, the remote proceeding. Each started as a novelty that competent practice required one to understand and to use for the client’s benefit while guarding against harm. Competence and caution have always been intertwined. Artificial intelligence is the newest of these tools and among the most powerful, and it asks the same of us, that we marry the enthusiasm to use it with the discipline to watch it closely. [emphasis added].

After discussing a recent court AI rule, the Elliot court turned to the facts of the case.  It wrote: “The conduct at issue here, a litigant hiding instructions in their own filing to manipulate the tools that others might use to read it, was not among the dangers we contemplated [in that court rule]. It was hardly imagined at the time. That the Rules do not address this conduct reflects only how quickly the technology and its misuses are moving. That the conduct was not named in the new Rule takes nothing away from the duties of good faith and candor that have always governed those who appear before this Court since long before any of these tools existed.”

While most of the attention regarding misuse of AI has been focused on hallucinated cases, this is different. The court wrote: “That danger looks at what comes out of the machine. The conduct here is deliberate and dangerous input, a litigant seeding their own filing so that the output of whatever tool later ingested it would be corrupted in favor of the litigant.” [emphasis in original]. It added:

A framework built to catch unreliable output does not, by its nature, reach a filer who manipulates the input, and the verification duty the Connecticut Judicial Branch imposed above, however sound for the danger it was written to address, leaves this one untouched. But it remains a serious litigation abuse. The duty of candor to the court and the court’s inherent authority over the integrity of its own proceedings reach it, and requires the court to sanction it. [emphasis in original].

The court explained:

CONCEALED INSTRUCTIONS (“PROMPT INJECTIONS”) TO AUTOMATED SYSTEMS ARE NOT PERMITTED IN COURT PLEADINGS

What the plaintiff did here was to use that new tool in a dishonest way. A filing is a communication to both the court and the opposing party. Its integrity rests on the simple premise that what the reader sees is what the filer wrote, and that the filer refrains from transmitting, at the same time, a second and hidden message engineered to change how the filing is reviewed or potentially judged.

Text that is invisible to the human eye but planted for a machine to read and obey betrays that premise.

Had the plaintiff wished to address the court’s or an opponent’s potential use of artificial intelligence, they were free to write so in plain, visible words that everyone could see and answer. That they hid the instruction instead is, itself, evidence of its malicious purpose.

The technique has a name, “prompt injection.” [emphasis in original].

The opinion described “prompt injection”: “By hiding a command inside a document that the system later ingests, the filer attempts to smuggle their own instruction into that stream so that the system treats it as though it had come from the system’s operator. In this case that operator is presumed to be the court, its staff, or opposing counsel. The object is to capture a tool that a judge, a clerk, or a party might rely upon and to turn it, silently, to the filer’s advantage.”

The Elliot court  viewed prompt injection as a secret communication that opposing counsel could not see.  It analogized it to an ex parte communication.  That is improper because our judicial system rests on the premise of open communication on-the-record.  “It is a concealed communication to those who decide, or to the tools on which they rely, clandestinely pleaded outside the knowledge of the other side and, indeed, the Court, itself.”

In a fascinating passage, the court explained the method and scope of prompt injection in other aspects of society. Id. at *5. It wrote that “the tactic is now everywhere….”  It wrote: “An opponent’s production, a witness statement, an expert report, any incoming document becomes a potential vector to corrupt output.”

The Judge wrote that the court does not use AI to review filings, “so the hidden instruction had no impact on a ruling. The wrong lies in the attempt, the deliberate planting of a concealed directive intended to mislead whatever artificial-intelligence tool ANY reader of the filing might use.”

The Elliot court did not find plaintiff’s explanation credible.  Because the issue was novel, the court relied on its inherent authority. However, it cited a prompt injection decision from Brazil as supportive. As noted above, it translated that decision by using AI.

In conclusion, the court evaluated the factual predicate: “Turning specifically to whether the actions of the plaintiff are sanctionable in this case, the fact that the plaintiff continued to hide messages in new pleadings after receiving notice of this hearing is stunning.”

However, the court Elliot expressly relied on principles of proportionality in imposing a sanction.  It rescinded permission to electronically file and mandated paper filing by the plaintiff. That “is a proportionate response to a demonstrated and repeated misuse of e-filing, and it is the narrowest measure that reliably addresses the conduct. It is further not a barrier to the plaintiff’s continued pursuit of this case.”

The court closed by stating: “Nothing in this order prohibits the plaintiff, or any party, from using generative artificial intelligence as an aid in preparing filings, provided the user independently verifies what the tool produces, as Connecticut Practice Book § 4-9(b) requires.”

This blog was initially posted on  Electronic Discovery Reference Model.

In May, I published a blog about  Williams v. Honl, 348 Or. App. 505 (Apr. 22, 2026), titled Cite Checking to Find Hallucinated Cases Deemed Insufficient.  The Oregon court wrote: “[S]o that the clear does not become cloudy, we state the obvious: Using generative artificial intelligence to generate legal briefs and then simply cite-checking them bears no resemblance to the competent practice of law….When lawyers trade reflection for automation, they surrender the very quality that makes their words worthy of belief. Although cite checking is, of course, an important part of producing reliable, competent briefs, it is not the type of work that requires a law degree. Law is a profession….” (cleaned up; citation and quotations omitted; emphasis added).

A similar result was reached in Smith v. Polk Co., 2026 WL 2280990 (W.D. N. Car. Aug. 7, 2026). After the court issued an order directing Plaintiff to show cause why she should not be sanctioned for use of artificial intelligence, counsel for Plaintiff responded by letter. Plaintiff apologized for inadvertently failing to file an A.I. certification required by the court. Additionally:

Counsel represented that she “does not use AI to conduct legal research,” and that “[t]o ensure the accuracy of citations … [she] runs briefs through LexisNexis brief analysis” and fixes any error that appears “alarming.” … Counsel further represented that she “has AI embedded in her practice” but that her “AI program cannot conduct research and cannot hallucinate.” … Regarding the fabricated quotations, counsel for the Plaintiff says that she “must be the origin,” that “she made the errors, accepts full responsibility, attempted to properly verify her work and fell short,” and that “AI cannot be blamed.” … Counsel also represents that she has now “made changes to her practice” and “has added additional time to more thoroughly vet her work.”

Id. at *10 (emphasis added). The court was not satisfied:

The Court is deeply troubled by the errors previously identified in the Plaintiff’s filings, and counsel’s letter does little to allay the Court’s concerns. Counsel indicates that she relies on a LexisNexis program for citation verification rather than having an attorney, or a paralegal working at an attorney’s direction, verify citations as required by the Court’s Standing Order. Moreover, counsel has not explained the origin of the fabricated quotations other than to accept responsibility for them and assert that they were not produced by an artificial intelligence program. How such fabricated quotations could have appeared in the Plaintiff’s filings at all therefore remains a mystery. Finally, while counsel asserts that the artificial intelligence program embedded in her practice cannot hallucinate, she has provided no corroboration for that assertion, nor has she even provided the name of the artificial intelligence program that she uses. As a result, the Court finds that counsel’s response has fallen well short of the Court’s expectations. Nevertheless, because counsel has accepted responsibility for the errors in the Plaintiff’s filings, the Court will discharge the Show Cause Order. Counsel for the Plaintiff is cautioned, however, that any similar shortcomings in future filings will result in sanctions.

Id. (emphasis added).

The court in Barteca Holdings LLC v. Tacobarn Newtown LLC, __ F. Supp. 3d __, 2026 WL 2253785 (D. Conn. Aug. 4, 2026), issued a show cause order concerning use of GenAI.  It cataloged erroneous citations, quotes that did not exist, and mischaracterizations of law. After hearing the attorney’s explanation, it wrote:

On June 25, 2026, the Court held a show-cause hearing, at which Attorney Miller reiterated those representations and further explained the circumstances under which the AI-generated material was incorporated into his briefing. Attorney Miller clarified that this matter is the first and only matter in which he utilized artificial intelligence. As for his writing process, Attorney Miller explained that he first wrote the brief himself conventionally. Then, in an attempt to improve it, he used a tool called Open Law, which he paid for, for suggestions on arguments and additional cases. He also used Claude and Chat GPT for additional suggestions. Concerned about the risk of AI hallucinations, Attorney Miller then cross-checked the citations in the brief to determine whether they existed and were cited correctly, including by Shepardizing every case in the brief through Lexis. However, he did not adequately verify that each “pin cite” referred to the correct page or that the quotations included in his brief were accurate. [emphasis added].

The court wrote that “merely incorrect legal statements” do not violate Fed.R.Civ.P. 11. However, once a fabricated citation is identified, the court considers two factors:

1) verification and inquiry (“Whether counsel [or the unrepresented party] conducted a reasonable, human-based verification of every cited authority before filing. A reasonable inquiry requires more than reliance on an automated tool; it demands independent confirmation through recognized primary legal sources. The signature of an attorney [or the unrepresented party] certifies human diligence, not mechanical output.”)(emphasis added; citation omitted); and,

2) candor and correction (“Whether counsel [or the unrepresented party] promptly disclosed the use of AI and corrected the record once inaccuracies were discovered. Candor after filing weighs heavily in mitigation; concealment or minimization aggravates the violation. The duty of candor extends beyond the moment of signature, it continues for as long as the filing remains before the Court.”)(citation omitted).

The Barteca court wrote: “Applying the framework discussed above, the Court finds that the first factor—verification and inquiry—weighs in favor of sanctions because Attorney Miller failed to conduct a reasonable human verification of the authorities cited in the challenged filings before submitting them.”  It stated that “Rule 11 imposes an obligation on attorneys to, at a minimum, read the cases they cite to the Court.” [citation omitted].

While the second factor—candor to the court—weighed in the attorney’s favor, “regret and apologies are not necessarily enough to avoid the imposition of sanctions for the submission of non-existent legal authority.” [citation omitted].

After consideration of all factors, the court imposed a sanction of $3,500 “together with a referral of this matter to the Grievance Committee….”

For general guidance, see Annot., 110 A.L.R.7th Art. 3 (Originally published in 2026), titled “Sanctions and Remedies Where Parties Submit Citations Hallucinated by Artificial Intelligence Programs—State Cases.”

This blog was initially posted on  Electronic Discovery Reference Model.

“The Court writes specifically here to address the portions of the Proposed Order that pertain to ‘Attorney’s Eyes Only Material,’ and how such material will be provided to Defendant Adeleke.”  Jane Doe v. Adeleke, et al., 2026 WL 2283015 (S.D.N.Y.  Aug. 7, 2026).

The proposed AEO materials included “all documents containing Plaintiff’s personal identifying information, all records concerning Plaintiff’s medical and mental health care history, all documents within the confidential files of DOCCS OSI, and any documents that contain personal identifying information of non-party victims.”

The proposed order stated that Defendant Adeleke would receive only a redacted copy of AEO materials, unless otherwise agreed by the parties or ordered by the court.

The court stated two principles:

• “In fashioning appropriate procedures for the exchange of discovery in this case, this Court is mindful of the fact that courts have held that a pro se party, as a party to an action, must have access to the materials that an attorney would if he were represented by counsel.” Id. at *2 (cleaned up).
• “That said, courts have approved various procedures for limiting access to materials by pro se parties during the course of litigation in light of the particular facts and circumstances of the cases.” Id.

The court wrote that there are “many ways” in which a document can be redacted.  Some permit the reader to understand the contents of the remainder of the document. Others are extensive. Here, it was not clear what was being proposed. The court explained the problem:

At this early stage of discovery, it is not clear what the scope of redactions will be in the documents that are marked as “Attorney’s Eyes Only Material” and produced to Defendant Adeleke in redacted form, or how easy or difficult it will be for Defendant Adeleke to determine what information has been redacted from these documents. Paragraph 5 of the Proposed Order provides a procedure by which parties are able to object to the designation of any document as “Attorney’s Eyes Only Material,” but this procedure is only meaningful if the receiving party understands what is being withheld.

The court solved the problem by mandating a redaction log.

Here, for Defendant Adeleke to understand what is being withheld in the “Attorney’s Eyes Only Material” documents or other things that are produced to him, and to permit him to make informed determinations regarding whether he needs to invoke the dispute procedures under Paragraph 5 of the Proposed Order, it is hereby ordered that any party that produces documents or other things designated as “Attorney’s Eyes Only Material” to Defendant Adeleke, and redacts the documents or other things in accordance with Paragraph 12(c) of the Proposed Order, must provide a detailed log with an appropriate description of the withheld information. If Defendant Adeleke objects to the designation of any documents or other things as “Attorney’s Eyes Only Material,” he must proceed according to the procedure set forth in Paragraph 5 so that the parties can meet and confer and determine whether any compromise resolution is possible.

This blog was initially posted on  Electronic Discovery Reference Model.

Mr. Round reports that the Judicial ethics opinion arose out of the lawsuit against the Judge: “The facts in the ethics committee’s opinion closely mirror the case of Nathan Charles, an immigration attorney in Baltimore who represented himself in contentious divorce and custody proceedings….  Charles has sued judges of the Montgomery County Circuit Court, alleging his rights to free speech and due process were violated because he criticized the court and all of its judges. Both lawsuits were filed in U.S. District Court. Charles represented himself in the family law proceedings and the lawsuits against the judges.”  Id.

The Judicial Ethics Committee “concludes on the facts given that the Requester [a circuit court Judge] likely is not required to recuse for any objective reason. Recusal is required only if the Requester subjectively determines that the Requester is not able to remain fair and impartial.”  The latter was determined to not be the case here.

Maryland Judicial Ethics Opinion 2026-22 (Aug. 10, 2026), begins by framing the issue:

Issue: Must a judge recuse from a matter in which a litigant has sued the judge in other jurisdictions and has disclosed filing a disciplinary complaint against the judge?

Answer: No, unless the judge determines subjectively that the judge is unable to remain fair and impartial in the matter.

The self-represented litigant had sued the Judge and also filed a Complaint with the Maryland Commission on Judicial Disabilities.  The Opinion recites that the self-represented litigant “has now moved to disqualify the Requester [a circuit court judge] and every other active judge and magistrate in the Requester’s jurisdiction,” describing them as future defendants. (As noted in my prior post, leave to amend the Complaint was denied in federal court and it was dismissed.)

The Judicial Ethics Committee reviewed: Maryland Code of Judicial Conduct Rules 18-101 and 18-202; its standards of recusal decision, Opinion 2025-32 (Nov. 7, 2025); and, Art. IV of the Maryland Constitution, which applied here.

The Committee wrote that recusal has subjective and objective aspects. Subjectively, “[i]f the judge is not confident in the judge’s own subjective impartiality, then recusal is required on that basis alone.”  Objectively, the Judge must decide if there is a reasonable perception of impropriety.  The Committee added:

Disqualification in appropriate circumstances serves the goal of the judicial process not only being fair, but appearing to be fair….  At the same time, judges have a duty to preside when qualified that is as strong as their duty to refrain from presiding when not qualified. [cleaned up].

The Committee did not opine on the subjective prong. On the objective prong, it concluded that “there is not likely to be an objective reason to question the Requester’s impartiality based solely on the fact that the litigant has brought or may bring other claims against the Requester.  Here, the Requester’s knowledge of the litigant is based entirely on prior judicial proceedings.  Information derived entirely from judicial proceedings is not considered ‘personal.’”

The Committee wrote that a person with knowledge of all the facts “likely would understand that the litigant’s complaints are not a reasonable reaction to any action by the Requester, but a manifestation of dissatisfaction with decisions that have been adverse to the litigant.  The facts presented suggest strongly that the litigant is using the other complaints tactically, to try to remove the Requester and other judges and magistrates from the matter.  Judges have a responsibility to resist such tactics if they are able to maintain the necessary subjective impartiality.” [emphasis added].

Further, it wrote that “the litigant’s disclosure of the litigant’s complaints to the Maryland Commission on Judicial Disabilities likely was improper.”

In an interesting footnote, the Committee suggested that the self-represented litigant may have overplayed his hand:

The duty to recuse also is qualified by the rule of necessity.  “[B]oth the constitutional and statutory provisions governing recusal must yield where recusal ‘would destroy the only tribunal in which relief . . . may be sought.’  Gordy v. Dennis, 176 Md. 106, 109 (1939).”  Opinion 2025-32 (Nov. 7, 2025) at 5.  If there were any merit to the litigant’s claims here, the rule of necessity could be implicated because the litigant seeks recusal of every judicial officer in the jurisdiction.

For posts on protecting the Judiciary, see

• Commentary: “Ex-Judges See ‘Grave Threat in Trump Official’s ‘War’ Talk” And “Senate Committee to Investigate Impeachment of Judges” (Nov. 16, 2025);
• “DOJ’s No. 2 Official Asks Lawyers to Join ‘War’ Against Judges”(Nov. 7, 2025);
• Another Judicial Impeachment Effort?  What Would Justice Rehnquist Say? – E-Discovery LLC (Jul. 9, 2025);
• Protecting the Judiciary – Bolch Judicial Institute (Mar. 23, 2025);
• “Pizzas Sent to Judges’ Homes in Name of Judge’s Murdered Son” (Apr. 17, 2025);
• Protecting the Judiciary – Again;
• Protecting the Judiciary Against This Ill-Advised “Impeachathon”;
• Protecting the Judiciary –  Article of Impeachment:  “It’s Déjà vu All Over Again”[1];
• Protecting the Judiciary From Another Dangerous, Fact-Free Impeachment Demand;
• Protecting the Judiciary and the Rule of Law – Frivolous Articles to Impeach Federal Judge Filed;
• Protecting the Judiciary and the Rule of Law;
• Maryland’s Protection of the Judiciary (Apr. 10, 2024);
• American Bar Association Statement on Threats Against the Judiciary (Apr. 8, 2024);
• Maryland Bills to Protect Judges and Their Children (Feb. 23, 2024);
• I Hear Crickets From the American Bar Association About Threats Against Colorado Justices (Jan. 27, 2024);
• Judge Paul Grimm: The Judiciary is Under Attack.  Lawyers Need to Defend It (Oct. 24, 2023);
• Threats Against the Colorado Supreme Court Must Be Called Out (Dec. 23, 2023);
• Maryland Passes “Watered-Down Judicial Security Bill”  (Apr. 12, 2025);
• Judicial Conference of the U.S. – Inadequate Funding for Security (Apr. 23, 2025);
• Why Impeachment Threats Against Judges Will Fail: Legal Insight (Bloomberg Mar. 6, 2025);
• Letter from Paul W. Grimm Regarding Threats and Attacks on Judges (Feb. 10, 2025);
• The Judiciary Is Under Attack. Lawyers Have a Duty to Defend It (Bloomberg Law Oct. 24, 2023);
• Statement of the American Bar Association: ABA stands firmly with statement of Chief Justice John Roberts in rejecting inappropriate calls for judicial impeachment (Mar. 18, 2025);
• American Bar Association president speaks out against attacks on judges and lawyers : NPR (Mar. 11, 2025);
• ABA condemns remarks questioning legitimacy of courts and judicial review (Feb. 11, 2025).

The United States District Court for the District of Maryland has issued Standing Order 2026-03 titled “In Re: Use of Generative Artificial Intelligence in Court Filings.”

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.”

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.