In Belt, in brief summary, a government agent obtained Ring camera video of the crime.  On the one hand, the “video appeared to capture several aspects of the crime such as shouting, the assaults, a fire on the victim’s property, defendants’ vehicle, and the eventual arrival of law enforcement,” among other things.  Id.  That is typical authentication evidence.

On the other hand, Phil explained:  “The video also included several gaps ranging from seconds to over 22 minutes. During one of the gaps, a car ran over the victim.”  The owner of the Ring camera was not available to testify about the cause of the gaps.

The defense argued that the missing footage would have been exculpatory and that the gaps showed tampering. The trial court overruled the objection. A divided appellate panel held that the government met the “low bar” of authentication.  The majority held that the gaps went to weight, not admissibility. An en banc panel affirmed.

Phil provides great detail about the dissents.  For example, Phil wrote:

Judge Kelly criticized the majority for glossing over the circumstances surrounding the video in Belt, which differed from traditional instances where law enforcement testify about footage they generated. In Belt, the FBI agent did not create the footage, but downloaded it directly from the aunt’s Ring camera. In so doing, the agent did not obtain information about the camera make or model, the software application used, or whether the system recorded continuously or was motion activated. Without that information, the government failed to offer evidence supporting the conclusion that the camera was operating as designed….  From her perspective, the gaps impacted the video’s admissibility and not merely its weight.

Phil noted: “Judge Erickson called out the issue of deepfakes, observing that the ‘changing technological environment in which we live’ calls for a stricter gatekeeping function by trial courts given the reality of AI-generated videos.”

Phil also suggests that proponents need to be prepared to show the “provenance” of a video and wrote: “One way to do so is by collecting and preserving original native files rather than relying on informal file transfers like the download that took place in Belt.”  He also suggests documenting the make and model of the recording hardware, the software version, a chain of custody log, “and the operational parameters (such as whether the device records continuously or uses motion-activation sensors).”

Phil explains that: “Parties opposing the introduction of deepfake videos should ground their accusations in fact-specific evidence. This may very well require the retention of experts to evaluate the quality and nature of the recording at issue. In addition, the opponent (and its expert) may need to inspect the underlying file structure for the video to assess any number of issues, including whether the application permits media editing and whether the footage or feed was in some way manipulated.”

Phil’s suggestions are excellent, as they always are. Congratulations to Phil Favro on the Opening Favro Law PLLC (Jun. 16, 2025).  He is an amazing attorney, person, and resource.

One interesting authentication case is described in Evidence Sufficient to Demonstrate that Audio Recording Was Not a Deepfake (Mar. 23, 2026). I won’t repeat it all here.  The proponent authenticated a voice mail challenged as a deepfake with an affidavit from the company that owned the voicemail system, stating that it was accurate and unaltered, and with the lay proponent’s own affidavit stating voice recognition and additional details.  The party claiming that the recording was a deepfake refused to testify, and that said a lot.

There are several other great resources, the National Center for State Courts has published “bench cards.” Deepfakes – National Center for State Courts (Mar. 6, 2026).

Craig Ball has posted a wonderful guide.  Book Review: Craig Ball, “Forensic Tells: The Litigator’s Guide to Detecting Deepfakes and Authenticating Digital Evidence” (Mar. 7, 2026).

And, there are examples of forensic examination exposing deepfakes. Deepfakes Uncovered – iPhone 6 Could Not Have Captured the A.I.-Generated Evidence (Sep. 25, 2025)(“Here’s the problem for [plaintiff] Maridol Mendones: Apple did not introduce Apple Intelligence until iOS18 and required an iPhone 16, iPhone 15 Pro, or iPhone 15 Pro Max.”).

The Supreme Court of Maryland has answered affirmatively the question of Can a witness authenticate a video if the video contains images that the witness did not see? (Aug. 16, 2024).

Generally, video and photos can be authenticated by either the “pictorial evidence” or “silent witness” theory.[1]  “Pictorial evidence” generally requires a witness with knowledge.

The “silent witness” method “allows for authentication by the presentation of evidence describing a process or system that produces an accurate result. Specifically, a witness can testify to the type of equipment or camera used, its general reliability, the quality of the recorded product, the process by which it was focused, or the general reliability of the entire system.” Authentication of Surveillance Video by Lay Witness Under Silent Witness Doctrine (Dec. 9, 2024)(citation omitted).

That is precisely the technique Phil was describing.  His advice is spot on.

Maryland has also permitted authentication of a “composite” video. Is a “Composite” Video Admissible and Can a Police Officer “Narrate” It at Trial? – Part 2 of 2 (Sep. 1, 2024)(neither of the detectives witnessed the events about which they testified; however, they confirmed many facts in the video).

In Maryland, the Trial Court is a “Gatekeeper” But Not an “Armed Guard” (Jun. 25, 2022).

____

[1] Video may be authenticated as a business record, by circumstantial evidence, or by a combination of methods, according to the Supreme Court of Maryland, and that list is not exhaustive.

Rule 104(b) is an old and familiar friend.  The federal Advisory Committee Notes track it back to 1972, stating:

In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled “conditional relevancy.” Morgan, Basic Problems of Evidence 45-46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g., evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401. [emphasis added].

But, it appears that “conditional relevance” will soon be no more.

The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States published the “Preliminary Draft: Proposed Amendments to Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Federal Rules of Evidence” (August 2026).

The Report of the Advisory Committee on Evidence Rules describes the concept of conditional relevance as “unhelpful”  and “confusing.”  The proposed new language is double underlined below.  Removed language is stricken:

(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. Unless these rules provide  otherwise, the proponent must establish the existence of a preliminary fact by a preponderance of the evidence.

10 (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. To establish that evidence is relevant, the proponent must demonstrate to the court that the trier of fact could reasonably find that the requirements of Rule 401 have been met. In making its relevance determination, the court may consider the evidence itself, other evidence, and common knowledge and experience. The court may admit the proposed evidence on the condition that the further proof be introduced later.

The end of conditional relevance is clear. The Committee Note states:

[T]he [proposed] amendment to Rule 104(b) eliminates the concept of “conditional relevance.” There is no reason for special treatment of facts that are conditionally relevant, because in almost all cases, the relevance of a particular fact is dependent on a showing of other facts and so the relevance is “conditional.” Moreover, if the existence of one fact is conditionally relevant upon another, the result is that both facts are “conditionally relevant.” See Ronald Allen, The Myth of Conditional Relevance, 25 Loyola L. Rev. 871-884, 49 879 (1992) (“Evidence is relevant only because there is an intermediate premise or set of premises that connects the evidence to some proposition involved in the litigation. But if determining the relevance of evidence always requires relying on some intermediate premise, no distinction can be drawn between relevancy and conditional relevancy.”).

The Committee Notes state:

Providing a uniform approach to all questions of relevance avoids confusion, especially because most courts currently use the same permissive approach to all relevant evidence, conditional or not. All questions of relevance should be governed by the same “a reasonable person could find” standard because the jury is in as good a position to determine relevance as is the court.

Subject to public comment and further review, the Committee also proposes other changes to Rule 104.  The proposal codifies the common-law requirement that preliminary questions of fact be determined by a preponderance of the evidence standard.

Further:

The [R]ule 104(b) test that “proof must be introduced sufficient to support a finding” has been revised, because a court’s preliminary determination of relevance is not limited to proof submitted to it. A court could find evidence relevant under Rule 104(b) by considering the evidence itself, as well as common knowledge and experience. For example, if the proffered evidence is that the defendant was carrying a gun, its relevance to a charge of armed robbery can be determined without any further proof. The standard has been changed to whether the factfinder “could reasonably find” the evidence to be relevant. That standard is the same as “sufficient to  support a finding.”

The Advisory Committee suggests that different geographic areas may have different “common knowledge and experience,” writing:

In deciding whether evidence is relevant, the judge must not only take into account the evidence formally in the record, but also the likely background knowledge and experience of a reasonable juror from the area where trial is being held. For example, suppose a trial concerns the cause of a large explosion and fire. The plaintiff claims that the defendant mishandled nitrogen fertilizer containing ammonium nitrate. A witness is asked whether such a fertilizer was stored on the premises and an objection on relevance is made. If the trial is in a rural state with a large farming population, the trial judge would likely overrule the objection because a reasonable person from that population would likely know the dangerous properties of the material.  If, by contrast, the trial were held in an urban area, the judge would likely conclude that evidence of the dangerous properties must be entered into the record to satisfy the requirement of relevance. [emphasid added].

The Committee states that the amended rule “retains the provision of allowing proof to be introduced later.”

Many other Rule changes are proposed in the lengthy report. One that will have wide-ranging impact is the proposal that blanket bans on use by unrepresented litigants of electronic filing systems are prohibited.

Maryland Rule 5-104(b) is similar to the current Fed.R.Evid. 104: “Relevance Conditioned on Fact. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding by the trier of fact that the condition has been fulfilled.”

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

• “Clear Sky alleged that Ms. De Matteo executed multiple trust mortgage notes in favor of it, as creditor, and failed to repay them.  Ms. De Matteo and Mr. Jang, alongside the entities, played a ‘shell game’ to hide Ms. De Matteo’s assets from her creditors.”
• “Before the agreed final deadline, though, Mr. Jang and the entities started up a second ‘shell game’…. ‘Mr. Jang has been running a shell game similar to … what he was doing with the loans and the houses with Ms. DeMatteo…. He’s on his fourth …. maybe fifth [counsel]….’”
• “The record of Mr. Jang’s years of ‘shell game[s]’ supports the circuit court’s decision to exercise its discretion to impose sanctions and, specifically, select the ultimate penalty—judgment—after Mr. Jang violated an order to compel discovery willfully and appears to have perjured himself in at least one sworn answer to an interrogatory.”

However, the Appellate Court disagreed with the trial court’s reliance on exhibits that were not supported by an affidavit or declaration, writing:  “Maryland Rule 2-433 explicitly allows a sanctioning court to ‘rely on affidavits’ to ‘establish the truth of any averment by evidence[,]’….”

Here, however, the defendant argued that “the various exhibits, all in the record, on which the sanctioning court relied were not admitted into evidence at such a hearing.”

The Court wrote: “But if they were incorporated by reference into an affidavit in the record, the sanctioning court would be allowed to rely on those exhibits as well.”

It then continued:

That said, some of the exhibits on which the circuit court relied explicitly, particularly Complaint Exhibits A & B, were not incorporated by reference into a sponsoring affidavit. Under the Rules, then, the sanctioning court was not allowed to rely on those exhibits when establishing remedies. See Md. Rule 2-433(a)(3). This requires us to vacate the remedies portion of the discovery-sanctions judgment since those affidavits that were filed don’t support the remedies fully, see id., and to remand for further proceedings for the circuit court to determine remedies in a manner that complies with Rule 2-433. [emphasis added].

In a parallel context, the principle–that authentication of exhibits to a motion is required–is well-established:

Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804 and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, of if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001–1008); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first.

Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007)(emphasis added).

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[1] “This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Maryland Rule 1-104(a)(2)(B).”

The family law court held a July 30, 2025, hearing on a motion to modify timesharing. The court wrote:

During this [July 30^th] hearing, Appellant [Ms. Adams] testified about taking one of the children to an urgent care center and receiving medication after the appointment. She also produced a picture of the prescription medication bottle which was entered into evidence.

On August 13, 2025, Appellee [Mr. Anderson] filed a motion for sanctions alleging that Appellant’s testimony about the urgent care visit was false and that the picture of the medication had been altered or was created by artificial intelligence. Appellee’s motion stated that he had requested medical records from the urgent care center and the pharmacy, but both claimed no records existed for the time the child was said to have been taken to the urgent care center.

In response to the motion, Appellant denied the allegations and provided more documents to support the child’s going to the urgent care center and receiving medication. Appellee’s reply to the response indicated that the additional documents were also fake, photoshopped, or created by artificial intelligence.

Id. at *1 (emphasis added).

Initially, it is worth noting that Mr. Anderson’s challenge was more than a mere accusation. It was supported by evidence. Specifically, “he had requested medical records from the urgent care center and the pharmacy, but both claimed no records existed for the time the child was said to have been taken to the urgent care center.”  His challenge was supported by a factual predicate.

Several weeks later, on August 22^nd, the court addressed the issue. “The court indicated that, if the documents were falsified and her testimony untrue, Appellant would be going to jail.”  Id. at *1.

What happened next was crucial: “Counsel for Appellant indicated that Appellant’s testimony and the documents submitted to the court were false or altered.”  Id.  The court then issued a show cause order.

After some procedural steps, Ms. Adams entered a guilty plea to the contempt.

The court then swore in Appellant and questioned her about her testimony during the July hearing and the fake and altered documents entered into evidence. Appellant admitted to lying to the court. After a brief recess, Appellant then apologized to the court and the court sentenced her to forty-five days in jail. This appeal followed.

The court addressed a number of issues unrelated to the deepfakes, such as mootness, separation of powers, procedures for taking a guilty plea, and whether issues were preserved for appeal.  As to due process, the court wrote:

Here, we believe Appellant’s false testimony to the court and fabricated documentary evidence were indirect criminal contempt. We believe so because it took additional evidence from Appellee to bring Appellant’s actions to light. Due to this being indirect criminal contempt, the court had to provide more than a summary adjudication. Considering the case law cited above and the fact that we are reviewing for palpable error, we conclude that no error, palpable or otherwise, occurred as it pertains to due process.

Id. at *3 (emphasis added).  As to contempt, it added:

While it is true that Appellant did not disobey an order of the court, she did obstruct justice and disrespect the court. Providing false testimony during a hearing and submitting altered or fake documents into evidence is the epitome of resisting the authority of the court and degrading its authority. Furthermore, the court did not try to convict Appellant of a crime; it simply held her accountable for lying to the court. The court did not err in holding Appellant in contempt.

Id. at *4 (emphasis added).  Addressing separation of powers, the court wrote:

Appellant’s next argument is that the court violated the separation of powers doctrine by charging her with the crimes of perjury and forgery. This argument is without merit. As previously stated, the court held Appellant in contempt for lying to the court and introducing fake documents into the record. The judicial branch has the power to vindicate its own authority without complete dependence on the executive and legislative branches…. The court did not charge Appellant with or convict Appellant of a crime; therefore, there was no violation of the separation of powers.

Id. at *4 (emphasis added; cleaned up).

The court concluded: “Appellant’s actions were gravely serious and undermined the administration of justice. Pursuant to our palpable error review of this case, we find no manifest injustice and affirm the judgment of the trial court.” Id. at *5.

The Adams court wrote, twice, that the fake photos were entered into evidence. It wrote once that  she introduced fake documents “into the record.”

When Ms. Adams offered the initial photo, Mr. Anderson apparently did not have the evidence from the health care provider to challenge authenticity.  The first hearing was on July 30^th and the health care provider’s evidence was submitted as part of a sanctions motion on August 13^th.  This illustrates the need for early discovery and preparation to challenge evidence on the basis that it is a deepfake.

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

Defendant logged on to a virtual meeting using free Microsoft Teams software.  Unknown to both parties, that triggered a recording by Otter.ai.  Both counsel were notified by an after-the-fact email offering a download of an AI transcript.  Plaintiffs paid for it and filed the transcript in support of their motion. Defendant objected. The Camarillo Hospitality court excluded it.

After a motion to dissolve a TRO was denied, the court ordered a meet and confer. Further, plaintiffs were ordered to file a declaration “outlining in detail” the results of that meeting and a supplemental reply. Id. at *3.

And, that is where A.I. became at issue. The court wrote:

The result was anything but helpful. On April 6, 2026, Plaintiffs filed a supplemental “reply” that described in detail how the parties met and conferred on several occasions, none of which were productive…. Plaintiffs assert that Defendant made various admissions during the meet and confer sessions that, according to Plaintiffs, further justify the issuance of an order to show cause…. The trouble is that Plaintiffs’ arguments are based, in large part, on material taken from “transcripts” of the meet and confer conferences …  that appear to have been automatically generated by an Artificial Intelligence tool associated with the video conference software (Microsoft Teams) utilized by the parties.

Id. at * 3 (emphasis added).

Defense counsel objected immediately.  Counsel was “completely unaware” that the meeting was being recorded until after it was over and counsel received an email permitting download of a transcript.  Defense counsel further asserted that the recording violated California law.  Plaintiffs also learned of the recording via an email from Otter.ai.

The Court “immediately” sealed the “transcripts.” Id. at *3.  The court explained that:

Unfamiliar with Otter.ai, counsel inquired of Plaintiffs’ representative whether he had access to the service and was informed that Defendant had apparently triggered generation of the “transcript” service using a free log-in and that Plaintiffs were able to only access a limited portion of the transcription…. Based on that information, Plaintiffs’ counsel arranged to obtain the complete “transcript” of the March 30 meeting and a subsequent (April 2) meet and confer session by paying for the Otter.ai service….

Id. (emphasis added).  In addition to the lack of consent issue: “Some additional bickering between the parties ensued about whether these ‘transcripts’ captured privileged or otherwise confidential discussions.”  Id.

The court’s holding was:

The Court sees no reason to engage in greater depth in the resulting disputes over the “transcript” because: (1) neither party appears to have known enough about Otter.ai to have used it deliberately in an unlawful or improper way; and (2) the Court will not consider the transcript or any arguments based upon those “transcripts” for the simple reason that no party has made any effort to demonstrate its accuracy or trustworthiness. Consequently, Plaintiffs’ supplemental reply brief is stripped of much, but not all, of its substance.

Id. at *3 (emphasis added).  In short, where GenAI has not be authenticated, it is inadmissible.

The Camarillo Hospitality court next considered the merits, without that “transcript.” In doing so, it wrote: “The Court has spent an inordinate amount of time attempting to sort through this extremely messy record. The Court has not turned over every stone or read between every line and very well may have misunderstood certain facts or arguments. The parties have only themselves to blame for this.” Id. at n. 1.

For more information on recording a “conference of the parties,” please see:

• Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024);
• Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024)(“The court notes that, from time to time, in contentious cases like this one, courts have ordered that the parties record – by video or court reporter – their Local Rule 37.2 meet-and-confer sessions for the court’s review. Given the history of this case, and the tone of some of the briefs over the course of that history, it does boggle the mind to imagine what must go [on] during these sessions.” S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at *1 n. 2 (N.D. Ill. June 17, 2024).).

Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent spoliation.”  The pro se plaintiff sought to enjoin “Apple from deleting his e-books and requiring it to prove preservation.”  His motion was denied.

While it would not likely have changed the outcome on these facts, in this blog, I suggest that other parties seeking a protective order should not do so by means of a motion for preliminary injunction or motion for a temporary restraining order.

THE TRO AND PRELIMINARY INJUNCTION STANDARD

“The standard for issuing a temporary restraining order and preliminary injunction under Federal Rule of Civil Procedure 65 is the same.” Isiev v. StantaCruz, 2026 WL 891760, at *2 (C.D. Cal. Apr. 1, 2026).

A TRO may issue only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition….”  Fed.R.Civ.P. 65(b)(1).

A TRO and preliminary injunction  involve “substantially identical analysis….” Isiev, 2026 WL 891760, at *2.  Generally, there must be a showing of “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the public interest favors an injunction.” Id.

“The movant must “clearly establish” all four elements.”  Jackson v. Jones, __ F.Supp.3d ___, 2026 WL 561148, at *2 (N.D. Ga. Feb. 27, 2026).

“A TRO or preliminary injunction under Federal Rule of Civil Procedure 65 is an “extraordinary remed[y]” that should be granted ‘only sparingly and in limited circumstances.’” Wood v. Bank of Am. N.A. et al., 2026 WL 893043, at *1 (W.D. Va. Apr. 1, 2026).

THE STANDARDS GOVERNING PRESERVATION ORDERS

There are at least three different tests applicable to preservation requests:

Some courts apply the four-prong preliminary injunction test.  That requires showing a likelihood of success on the merits.  Some courts have found that inapplicable to a request for a preservation order.

Others apply a different, three-prong test. Requests for a Preservation Order (Mar. 7, 2022).  Under the three-prong test, the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence. Id. (citation omitted).

A third test is whether the party seeking preservation can demonstrate both that an order is necessary and unduly burdensome. Id.

KAFEEL APPLIED A CORRECT STANDARD

Instead of the four-factor standard implicitly requested by Mr. Kafeel, the Kafeel court applied a proper—and different—standard for a preservation order,

The Kafeel court wrote that the motion “revolves solely around preservation.”  It set out the principles governing such a motion:

[P]arties already have a duty to preserve relevant evidence in anticipated and pending litigation….  As an order demanding compliance with this preexisting duty is strong medicine that should be dispensed with restraint, courts first require “a significant concern that potentially relevant evidence will be destroyed causing harm to the opposing party.” [citations omitted].

Here, Mr. Kafeel did not meet the burden of production:

Kafeel submits limited evidence that his e-books face likely deletion. First, he points to a settlement agreement requiring Apple to “confirm permanent deletion of individual Siri audio recordings.” … But this case involves e-books, not Siri. Second, he points to a provision of the eBook Distribution Agreement providing that after termination of the Agreement, “Publisher Materials in Apple’s possession or control shall be promptly destroyed.” … However, Apple confirmed that it is complying with its preservation duties in this lawsuit “notwithstanding any contractual right to delete materials.” … Apple’s preservation duties in this lawsuit would clearly prohibit deletion of Kafeel’s e-books, so there is no reason to believe they are subject to imminent deletion.

A BETTER MOUSETRAP?

It is not unusual for parties seeking a preservation order to request immediate injunctive relief.  E.g., Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022)(request for TRO denied).

However, parties seeking a protective order may wish to suggest theories that do not impose a burden higher than is necessary.  In my view, the standard applied to motions for TRO’s and preliminary injunctions is higher than the standards applied to motions for preservation orders.

While, on these facts, it would not likely have made a difference, I suggest that the Kafeel plaintiff shouldered a heavier burden than necessary by seeking a preliminary injunction.

Under every standard, a party moving for a protective order bears a significant burden: “Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”  Id., quoting Gambino v. Hershberger, 2017 WL 2493443, at *3 (D. Md. June. 8, 2017), aff’d, 700 Fed.Appx. 272 (4^th Cir. 2017);  Failed Request for a Preservation Order (Jul. 13, 2022).

Maryland’s Standing Committee on Rules of Practice and Procedure has recommended an amendment to Maryland Rule 1-311 to address citation of “hallucinated” or fabricated cases.  Maryland’s Proposed Anti-Hallucination Rule (Mar. 16, 2026).  That issue has also been addressed in two recent decisions.  Maryland Fake Citation Case – Court Issues a Warning – Referral to Atty. Grievance Comm’n. (Nov. 2, 2025); Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2026).

This blog focuses on a different issue. Maryland has long had a “computer-generated evidence” rule applicable to civil cases, Md. Rule 2-504.3.

“Just as the telegraph gave way to the telephone, the stagecoach gave way to the automobile, and the typewriter gave way to the word processor, so too will courtroom chalkboards, easels and blow-up placard charts give way to computer-generated exhibits.” Galves, 13 Harv. J. L. & Tech. at 300. In fact, some jurisdictions have amended their rules of civil procedure to facilitate the use of CGE’s in the courtroom. See e.g., Md. Rules 2-504.3.”

Com. v. Serge, 58 Pa. D. & C.4th 52, 84 (Com. Pl. 2001)(emphasis added).

However, since it was adopted in 1998 and amended in 2009, no reported Maryland case has cited Rule 2-504.3. The rule “sets out procedures regarding the disclosure, discovery, and pretrial challenges applicable to computer animations or simulations.”  The Honorable Paul W. Grimm (ret.), Claudia Diamond, “Low-Tech Solutions to High-Tech Wizardry: Computer-Generated Evidence,” Md. B.J., July/August 2004, at 5, 6.

Rule 2-504.3 is a procedural rule; it does not address the substantive admissibility of such evidence.”  Id. at *10. It “provides comprehensive guidance to the bench and bar regarding the use of animations or simulations as evidence at trial and the trial court’s handling of any dispute about such evidence.

Judge Grimm and Ms. Diamond summarized its operation.  First, notice is required.  Then an objection may be made.

The filing of an objection requires the court to hold a hearing to determine the admissibility of the evidence. The rule also permits the trial judge to appoint an expert to assist it in ruling on the objection and to assess costs and expenses to one or more of the parties.

If the evidence is ruled admissible, the party opposing it need not renew objections again at trial, as the earlier hearing preserves them for appeal. Likewise, if the evidence is excluded, the issue is preserved for appeal, and no objection at trial is needed.

The procedures of Rule 2-504.3 allow practitioners, as well as the bench, to take the time and expend the necessary effort to resolve what may be complex evidentiary issues deliberately– rather than hastily addressing them in the midst of trial.

Id. at *11.

In my opinion, the current Rule likely applies to evidence created using GenAI.  This blog recommends an amendment to Maryland Rule 2-504.3 to make that explicit and to address what Maura Grossman, J.D., Ph.D., and the Hon. Paul W. Grimm (ret.) call “acknowledged” Generative A.I. evidence.  See “Judicial Approaches to Acknowledged and Unacknowledged AI-Generated Evidence,” 26 Col. Sci. & Tech. L. Rev. 110 (2025).

This suggestion borrows from a Maryland criminal statute addressing facial recognition technology, a form of AI. Facial Recognition Technology in Maryland Criminal Cases (Jan. 28, 2026); Maryland’s Facial Recognition Technology Statute (Aug. 14, 2025); Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence (Aug. 11, 2025).

Further, this suggestion borrows from  “Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, which is available at 24 Sedona Conf. J. 783 (2023).  The Sedona Conference article suggests that rules of procedure should ensure that adequate deadlines are set for a Daubert hearing. Id. at 801.

Judge Rodriguez continues: “Further, a pretrial hearing will likely be required for a trial court to assess the degree of accuracy with which the AI system ‘correctly measures what it purports to measure’ or otherwise ‘demonstrates its validity and reliability.’” Id. at 803. Judge Rodriguez wrote that “AI evidence may require that the offering party disclose any training data used by the AI platform to generate the exhibit.”  Id. at 802, as quoted in A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez (Sep. 27, 2023).  This proposed amendment to the Maryland Rule calls for notice, disclosure, discovery, and provides for a pretrial hearing if there are objections.

This suggestion is not a universal solution of all issues associated with GenAI.  It will be most effective where the proponent “plays by the rules,” i.e., with “acknowledged” GenAI.  By its terms, it would also address, and likely preclude admission of, “unacknowledged” GenAI evidence because failure to give notice would definitionally violate its terms. However, candidly, it would have less effect on the undisclosed GenAI, such as deepfakes, due to the difficulty in determining that “unacknowledged” GenAI is in fact AI-generated.

However, I suggest that this suggested amendment would be beneficial in addressing “acknowledged” GenAI.  The fact that it does not solve every problem does not undermine its value.

Rule 2-504.3 addresses “Computer-Generated Evidence.” This suggestion clarifies it to expressly encompass evidence created by GenAI.  Its key features are that it requires prior notice of the use of a GenAI exhibit; disclosure; discovery; a pre-trial hearing; and, a court-appointed expert.

Proposed additional language to the current Rule is bold, italicized, and underlined.  Minor deletions are marked as strikeouts.

RULE 2-504.3. COMPUTER-GENERATED EVIDENCE

(a) Definition–Computer-Generated Evidence. “Computer-generated evidence” means: (1) a computer-generated aural, visual, or other sensory depiction of an event or thing; and (2) a conclusion in aural, visual, or other sensory form formulated by a computer program or model, including as to both (1) and (2), without limitation, an image, video or animation, or audio recording that was created using Generative Artificial Intelligence. The term does not encompass photographs merely because they were taken by a camera that contains a computer; documents merely because they were generated on a word or text processor; business, personal, or other records or documents admissible under Rule 5-803 (b) merely because they were generated by computer; or summary evidence admissible under Rule 5-1006, spread sheets, or other documents merely presenting or graphically depicting data taken directly from business, public, or other records admissible under Rules 5-802.1 through 5-804.

(b) Notice: Use at Trial –

(1) Except as provided in subsection (b)(2) of this Rule, any party who intends to use computer-generated evidence at trial for any purpose shall file a written notice within the time provided in the scheduling order or no later than 90 days before trial if there is no scheduling order that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including (i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a)(1) or subsection (a)(2) of this Rule, (ii) a description of the subject matter of the computer-generated evidence, and (iii) a statement of what the computer-generated evidence purports to prove or illustrate; and

(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.

(2) Any party who intends to use computer-generated evidence at trial for purposes of impeachment or rebuttal shall file, as soon as practicable, the notice required by subsection (b)(1) of this Rule, except that the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used by a party only for impeachment of other evidence introduced by that party-opponent. In addition, the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used only as a statement by a party-opponent admissible under Rule 5-803 (a).

(c) Notice: Use in Motions

(1) Any party who intends to use computer-generated evidence in a motion or response to a motion for any purpose shall file a written notice with the motion or response that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including (i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a)(1) or subsection (a)(2) of this Rule, and, (ii) a statement of what the computer-generated evidence purports to prove or illustrate; and

(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.

(C) if the computer-generated evidence is to be used in a motion, a responding party shall be permitted sufficient time under section (d) of this Rule for additional discovery relating to the admissibility of the computer-generated evidence.  If the computer-generated evidence is to be used in a response to a motion, the moving party shall be permitted sufficient time under section (d) of the Rule for additional discovery relating to the admissibility of the computer-generated evidence.

(c) (d) Required Disclosure; Additional Discovery. Within five days after service of a notice under section (b) or (c) of this Rule, the proponent shall make the original or an accurate duplicate of the computer-generated evidence available to any party. Notwithstanding any provision of the scheduling order to the contrary, the filing of a notice of intention to use computer-generated evidence entitles any other party to a reasonable period of time to discover any relevant information needed to oppose the use of the computer-generated evidence before the court holds the hearing provided for in section (e) (f)of this Rule.

(d) (e) Objection. Not later than 6021 days after service of a notice under section (b)  or (c) of this Rule, a party may file any then-available objection that the party has to the use at trial of the computer-generated evidence and shall file any objection that is based upon an assertion that the computer-generated evidence does not meet the requirements of Rule 5-901(b)(9).[1] An objection based on the alleged failure to meet the requirements of Rule 5-901(b)(9)[2] is waived if not so filed, unless the court for good cause orders otherwise.

(e) (f) Hearing and Order. If an objection is filed under section (d)(e) of this Rule, the court shall hold a pretrial hearing on the objection. If the hearing is an evidentiary hearing, the court may appoint an expert to assist the court in ruling on the objection and may assess against one or more parties the reasonable fees and expenses of the expert. In ruling on the objection, the court may require modification of the computer-generated evidence and may impose conditions relating to its use at trial. The court’s ruling on the objection shall control the subsequent course of the action. If the court rules that the computer-generated evidence may be used at trial, when it is used, (1) any party may, but need not, present any admissible evidence that was presented at the hearing on the objection, and (2) the party objecting to the evidence is not required to re-state an objection made in writing or at the hearing in order to preserve that objection for appeal. If the court excludes or restricts the use of computer-generated evidence, the proponent need not make a subsequent offer of proof in order to preserve that ruling for appeal.

(f) (g) Preservation of Computer-Generated Evidence. A party who offers or uses computer-generated evidence at any proceeding shall preserve the computer-generated evidence, furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and present the computer-generated evidence to an appellate court if the court so requests.

Committee note: This section requires the proponent of computer-generated evidence to reduce the computer-generated evidence to a medium that allows review on appeal. The medium used will depend upon the nature of the computer-generated evidence and the technology available for preservation of that computer-generated evidence. No special arrangements are needed for preservation of computer-generated evidence that is presented on paper or through spoken words. Ordinarily, the use of technology that is in common use by the general public at the time of the hearing or trial will suffice for preservation of other computer- generated evidence. However, when the computer-generated evidence involves the creation of a three-dimensional image or is perceived through a sense other than sight or hearing, the proponent of the computer-generated evidence must make other arrangements for preservation of the computer-generated evidence and any subsequent presentation of it that may be required by an appellate court.

To be clear, this is my suggestion and it is not a current proposal to amend the Rule.

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

____

[1] Rule 5-901(b)(9) addresses authentication by: “Evidence describing a process or system used to produce the proffered exhibit or testimony and showing that the process or system produces an accurate result.”  It may be preferable to cite the authentication rule, Rule 5-901, in its entirety.

[2] Id.

Burnley involved two motions to enforce settlement agreements.

Mr. Burnley had made harassment claims against his neighbors and the police.  The settlement agreements were memorialized in two separate writings, and the case was dismissed, with the court retaining jurisdiction to enforce the agreement.  A party seeking to enforce the agreement was first required to notify the opponent, “describing the alleged breach and supplying written, audio, video, photographic, or other tangible evidence of the alleged breach.”

Later: “Walburn provided Burnley with a written notice of breach…. Specifically, counsel for Walburn sent, by USPS Priority Mail, a letter to Burnley identifying the provision of the Settlement Agreement he allegedly breached, providing a copy of the Settlement Agreement, and enclosing the audio recording of Burnley allegedly calling Walburn’s employer.” [emphasis added].

Both settling parties moved to enforce the settlements.  Mr. Burnley filed responses.  After holding that the agreements were valid, the court wrote:

The question remains as to whether Burnley breached these settlement agreements. For the reasons stated below, the Court finds that Burnley violated the Walburn-Burnley Settlement Agreement by contacting Walburn’s employer about Walburn.

It then turned to the facts.  A caller, identifying himself as “Tyrone Jackson,” began making calls to Mr. Walburn’s employer.  Suffice it to say that the calls breached the agreement if they were from Mr. Burnley. Mr. Walburn contended that they were and that “Tyrone Jackson” was a pseudonym.  He pointed to a number of facts, such as the fact that “Tyrone Jackson” was a former neighbor of Mr. Burnley. Mr. Burnley denied making the calls and challenged voice comparison. The court wrote:

He argues that the Court cannot grant the Motion to Enforce because the audio recordings have not been “authenticated prior to admission” pursuant to Federal Rule of Evidence 901(a)…. Instead, he argues, the recordings are either someone else entirely or are a manipulated audio made by artificial intelligence to “clone” his voice…. Given Burnley’s dispute over the authenticity of the audio recording, the Court ordered supplemental briefing and conducted an evidentiary hearing on the issue. [emphasis added]

Mr. Walburn submitted a Declaration from Mr. Roskam affirming that the copy of the audio recording was an exact duplicate of the original.  Mr. Walburn also submitted a Declaration:

In it, Walburn declared that he has been “acquainted with [Burnley] for approximately 5 years[,]” and has “had the opportunity to engage in conversations with him and hear his voice on multiple occasions.” … He declared that he received a copy of the audio recording from Raskom on June 10, 2024, and that it is his “sworn opinion and belief that the audio recording is both authentic and that ‘Tyrone Jackson’s’ identity is [Burnley].” … He based his sworn opinion and belief on recognizing Burnley’s voice “from numerous prior verbal interactions with him.” … Finally, Walburn certified that “the recording in the Court’s possession is original or an exact duplicate of the original recorded evidence.”

Mr. Burnley responded:

In his response, Burnley maintains that: (1) the declarations of Walburn and Roskam are defective because referenced exhibits were not attached…; (2) that the declarations themselves must be stricken as submitted in bad faith pursuant to Civil Procedure Rule 56(h)…; (3) there are deficiencies in the chain of custody that require a certificate of authentication…; and (4) it would “be an abuse of judicial process to attempt to authenticate [the audio recording] on February 17, 2026 when the telephonic recording occurred on June 6, 2024…. Further, Burnley denies having any conversations with Walburn which would substantiate Walburn’s claim that he can recognize Burnley’s voice.

The court discussed the low burden of the authentication rule, Fed.R.Evid. 901(a) and applied that rule, writing:

The Court finds that Walburn sufficiently established the authenticity of the audio recording through the sworn declarations of Walburn and Roskam. The declarations primarily established: (1) how the recording was made; (2) how the recording was received; and (3) that the recording in the Court’s possession is an original or exact duplicate. The Court finds that none of these foundational facts depend on the attachment of an exhibit, as Burnley contends. Indeed, the absence of an exhibit, however referenced in the declaration, does not render sworn, factual statements inadmissible, nor does it undermine authentication under Rule 901. At any rate, the Walburn cured this deficiency by filing their Reply to Burnley’s Response and attaching the exhibits referenced in the Walburn and Roskam declarations. [emphasis added].

It also rejected Mr. Burnley’s “sham affidavit” argument. The affidavit did not conflict with any prior sworn testimony.

It then turned to Mr. Burnley’s chain of custody argument. He asserted “that federal law requires complete documentation of every individual who accessed the recording, including dates, times, and storage locations, and that failure to do so violates due process.”  Citing Fourth Circuit precedent, the court disagreed.  Chain of custody is not an “iron-clad requirement” and “the fact of a missing link” does not defeat authentication if there is “sufficient proof that the evidence is what it purports to be and has not been altered in any material respect.”  Mr. Roskam’s uncontroverted Declaration met that standard. It explained that the call was recorded in the ordinary course of business, transmitted internally, and provided to Mr. Walburn.  Both of the declarants testified that it was an exact duplicate.

In the court’s words, “[n]onetheless,” Mr. Burnley asserted that Mr. Roskam failed to explain “where the voice recording of June 6, 2024 was stored and the names of the LiveWire employees that had access to the recording” as well as file a “certificate of authentication.” The court held that Fed.R.Evid. 901 does not require certificate or formal attestations.

Burnley’s insistence on additional formalities finds no support in the Federal Rules or Fourth Circuit law. On the other hand, Rule 901(b) non-exhaustive list of evidence that satisfies Rule 901(a)’s authenticity requirement expressly states that “[t]estimony of a witness with knowledge” that “an item is what it is claimed to be” is sufficient. Fed. R. Evid. 901(b)(1). Here, the Court has been presented with two declarations, sworn under penalty of perjury, testifying that the audio recording is what it purports to be, which plainly satisfies Rule 901.

Holding that the “ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with,” the court found that the two sworn statements provided that foundation.

It also rejected the argument that it was “unfair and unjust” to permit authentication of a June 6, 2024, recording on February 17, 2026.  “Based on the evidence presented, which included two sworn declarations, the Court is satisfied that the audio recording is authentic and has not been materially altered.”

Finally, the court addressed the voice identification issue.  Mr. Walburn attested that he has known Mr. Burnley for five years, heard his voice many times, and recognized it on the recording. Mr. Burnley denied making the call, was skeptical of the voice recognition, and said that “under no circumstances [had he] had numerous conversations with [Walburn]…” However, he admitted that Mr. Walburn spoke to him in the past. The court wrote:

Given the issues raised by Burnley as to the authenticity and identity of the caller on the audio recording, the Court convened an evidentiary hearing on March 4, 2026. During the hearing, the Court heard the audio recording live…. Walburn testified that the recording was an accurate, unaltered copy of the recording he heard when his supervisor, Mr. Roskam, shared it with him…. Walburn clarified that he had previously worked for FedEx, was not fired for selling illegal narcotics, and does not know of anyone, including those who live on his street, named Tyrone Jackson…. He testified that he recognized the voice on the audio recording as Burnley’s voice because “it sounds exactly like him,” and that “[g]iven the previous lawsuits, his previous interactions calling FedEx, and all of the novel information in there, [there] is only one person, which is him.” … Walburn noted that he could recognize Burnley’s voice because Walburn had “two or three conversations with him” about “four or five years ago” and has heard him “sometimes outside or so.” …

On cross-examination, Burnley questioned Walburn about how Walburn recognized the caller as Burnley, to which Walburn responded: “I have ears” and “I can hear.” … The Court provided Burnley the opportunity to testify, under oath, that the voice on the recording was not his.… Notably, Burnley declined to testify under oath that it was not his voice on the recording….

Based on the evidence presented, the Court credits the statements by “Tyrone Jackson” on the audio recording as having been made by Burnley. First, despite being given the opportunity to testify in open court, under penalty of perjury, Burnley declined to state on the record that he did not call LiveWire on June 6, 2024 and that the statements captured on the audio recording were made by him. Second, Walburn sufficiently identified Burnley’s voice as the voice of “Tyrone Jackson” based on hearing Burnley’s voice on prior occasions as his neighbor. Third, Walburn notes that Burnley previously swore, in an affidavit, that Burnley had contacted Walburn’s former employer, FedEx, in 2023 and alleged that Walburn used illegal drugs and tried to sell Burnley illegal drugs “on numerous occasions.” … The Court considers this previous behavior as relevant to proving Burnley’s identity as the caller who lodged nearly identical accusations against Walburn in the phone call to Walburn’s current employer, LiveWire. See Fed. R. Evid. 404(b)(2) (permitting the use of prior acts for the admissible purpose of proving identity and not for proving propensity in conformance with the prior acts). [emphasis added].

Turning to the merits:

Here, the Court finds that Burnley’s use of a pseudonym demonstrates awareness of the contractual prohibition and an attempt to evade it. Such conduct indicates that Burnley not only circumvented the settlement agreement in bad faith, but willfully breached it. His unwillingness to testify under oath to the contrary further shows that Burnley is aware of the consequences of his actions but nonetheless refuses to take accountability for them. Given the seriousness of Burnley’s behavior in flagrantly violating the settlement agreement, the Court finds that enforcement is necessary.

The court addressed a number of other issues.

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

Edwards v. Grubbs, __ Fed.4^th __, 2026 WL 706637 (11^th Cir. Mar. 13, 2026), demonstrates a proper use of GenAI.

Edwards was a consolidated appeal from a single use-of-force incident in Atlanta.  “On that fateful day, City of Atlanta Police Officer Jon Grubbs pulled his taser’s trigger, hit Jerry Blasingame in the back, and sent him barreling down a steep embankment that led to a metal utility box on a concrete platform at the bottom. Mr. Blasingame suffered severe injuries when he hit the box and platform….” The jury awarded significant damages.  The Eleventh Circuit affirmed, with a modification reducing punitive damages.

Mr. Blasingame was a homeless man.  He reached into a car and received money from the driver.  Officer Grubbs exited his cruiser and approached Mr. Blasingame.  In a 45-second event, Mr. Blasingame fled, crossed over a guardrail, and moved toward an opening in the brush with a steep decline and the highway below. The court wrote: “Without verbal warning, Officer Grubbs drew and deployed his taser, hitting Mr. Blasingame in the back. This caused Mr. Blasingame to fall down the steep embankment where he hit his head on the concrete platform of a utility box.”

The court described the scene:  “Emergency medical services estimated the embankment to be 30 feet long. The distance between the point of impact on the utility box and the guardrail was approximately 23 feet and 9 inches. The angle of the decline was approximately 30 to 40 degrees, as displayed in these photographs and diagrams of the scene….”

The court’s opinion includes “D.E. 211-31 at 9….  Illustrative Diagram: 23ft 9 in Fall at 30-40° Decline.”  A footnote to the opinion states: “This diagram was created with generative artificial intelligence.”  [emphasis added]. Exhibit D.E. 211-31 at 9 follows:

Diagram Created with GenAI

This copy of the exhibit was obtained from Keith Edwards v. Officer J. Grubbs, et al, No. 22-13261 (11th Cir. 2026) :: Justia.

The GenAI was not challenged and appears to be what Judge Grimm and Dr. Grossman call “acknowledged” AI. See Maura R. Grossman & Hon. Paul W. Grimm (ret.), Judicial Approaches to Acknowledged and Unacknowledged Ai-Generated Evidence, 26 Colum. Sci. & Tech. L. Rev. 110 (2025).

The GenAI appears to have been important. The court wrote:

• “Here Mr. Blasingame was at the top of a 30-foot decline with a slope of 30 to 40 degrees and with dangers—a highway and a concrete structure—below. Specifically, Mr. Blasingame was running down a steep embankment when Officer Grubbs tased him in the back.”
• “We held in Bradley that tasing a non-dangerous and unarmed fleeing suspect on an elevated surface, under similar circumstances—the suspect was atop an eight-foot wall when shot—is ‘obviously unconstitutional even absent a case directly on point.’”
• “[T]asing a non-dangerous and unarmed suspect on an elevated surface merely to prevent flight—was obviously unconstitutional to any reasonable officer even in the absence of caselaw directly on point.”
• “What matters is that the embankment had a slope of 30 to 40 degrees and a drop of about 24 feet from the point of impact.”
• “In sum, the Fourth Amendment violation here—deployment of a taser against a non-violent, non-dangerous, and unarmed suspect fleeing down a steep embankment—was one of obvious clarity.”

The balance of the lengthy decision turns on legal issues unrelated to ESI or GenAI, such as, for example, qualified immunity and Monell issues.

The dissenting and concurring opinion stated:

Whether framed in terms of physics, trigonometry, or plain old common sense, the circumstances here are just different [from Bradley]. Taking a look at the photos referenced in the Court’s opinion, we see a grassy hill overgrown with vegetation. See Maj. Op. at 5–6 (citing D.E. 211-31 at 4, 9). The angle of descent is 30–40°, not the 90° at issue in Bradley. Accordingly, to be clear, this case did not involve a 24-foot “drop,” as that term is ordinarily understood. Contra Maj. Op. at 21. Rather, it involved, at most—and I’m not trying to trivialize matters, just to distinguish Bradley—a very short drop, from a standing to a prone position, followed by a 24-foot downhill tumble. One needn’t be a scientist—parsing the interactions between gravity, inertia, friction, etc.—to appreciate the difference between knocking someone off a high wall and causing him to roll down a hill.

That opinion added: “When Mr. Blasingame saw Officer Grubbs approaching, he fled along the shoulder of a highway, ignored orders to stop, hopped over a metal guardrail, and entered an overgrown area that, after a short upward slope, descended at what we now know was a 30° to 40° pitch toward another road.”

Suit was captioned as Keith Edwards, plaintiff, because he is the personal representative of the deceased Mr. Blasingame’s estate.

UPDATE – the exhibit contained in the published opinion, 169 Fed.4th 1261, 1273 (2026), does not state “This document was created with generative artificial intelligence” as a note to the diagram. However, that statement is contained in Footnote 2 of the opinion.

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

UPDATE: Edwards v. Grubbs, __ F. 4th __, 2026 WL 1872929, 1t *1 (11th Cir. Jun. 30, 2026), is substituted for the original opinion.  The GenAI exhibits are at *1 and footnote 2.

That bill has now become law and is codified in Md. Code Ann., Courts & Judicial Proceedings Article §13-101.2.  It states in full:

13-101.2. Artificial Intelligence Evidence Clinic Pilot Program

Effective: January 15, 2026

(a)(1) In this section the following words have the meanings indicated.

(2) “Artificial intelligence” has the meaning stated in § 3.5-801 of the State Finance and Procurement Article.

(3) “Office” means the Administrative Office of the Courts.

(4) “Program” means the Artificial Intelligence Evidence Clinic Pilot Program.

(b) There is an Artificial Intelligence Evidence Clinic Pilot Program in the Office.

(c)(1) The purpose of the Program is to provide expertise in artificial intelligence to the circuit courts and the District Court in the form of expert testimony on the authenticity of electronic evidence that a court determines may have been created or altered using artificial intelligence.

(2) The Program shall engage college and university students, recent graduates, and faculty and technology professionals dedicated to the research and advancement of artificial intelligence in order to develop expert witness resources for courts to use in cases implicating the use of artificial intelligence.

(3) The Program shall prioritize civil cases in which one or more parties do not have legal representation or reasonable access to expert testimony.

(d) In administering the Program, the Office shall:

(1) Develop a grant application for the Program; and

(2) Award grants to eligible institutions of higher education.

(e)(1) For fiscal years 2027 and 2028, the Governor may include in the annual budget bill an appropriation of $250,000 to the Program.

(2) Not more than 20% of the money appropriated to the Program may be used for administrative expenses.

(f) The terms of an agreement between the Office and a grantee may include a clause that requires the Office to hold harmless the grantee against any claim alleging liability or damages relating to the provision of expertise in artificial intelligence as part of the Program, except in cases of willful or wanton misconduct, gross negligence, or intentionally tortious conduct. [emphasis added].