The court wrote: “The proposed filings are clearly not the work of an organic mind with linguistic talents developed in the crucible of human experience. It is obvious that the entity that drafted them has an artificial intellect that is unconcerned with, for instance, getting to the point. To comment on the filings at length would only serve to reward them. Still, I offer some particularly glaring artificial ticks that are a complete waste of the reader’s time. Throughout the motion, the author has taken special care to tell the Court what it is NOT arguing or suggesting.”  U.S.A. v. Sirois, 2026 WL 2671655 (D. Me. Sep.11, 2026)(emphasis added).

The court provided 10 examples and wrote: “Many, many more such empty statements follow. There are equally unproductive positive descriptions of what the Defendant purports to do with the motion, as though it were necessary to narrate the action rather than simply present the argument.”

The court stated: “Although counsel is free to employ generative artificial intelligence (‘AI’) to assist with the production of motions and other appropriate papers, the Court expects that counsel will distill the resulting artifacts to their essence in order to present filings that are accurate and concise and in keeping with ordinary practice.”  It added:

If every exhibit must be scanned and uploaded for critical commentary by AI, so be it, but counsel may not supplant the record with an artificial facsimile and force the consumption of AI circumlocutions without end. If these sorts of filings pass muster here then they must pass muster in every other case. That development would mark the end of human-centered jurisprudence because it will prove necessary for judges and their staff to outsource their own duties to an AI tool. In short, the Defendant and his counsel must draw upon whatever lessons and insights these tools may impart and attempt to translate them into a set of much more compact and cogent contentions that are more readily digestible by a human decision maker. [emphasis added].

In another recent decision, the court wrote that it “need not try to fish a gold coin from a bucket of mud.”  Some Unacknowledged A.I. Comes Within the “I’ll know it when I see it” Principle (Jul. 1, 2026).  I guess that is another way of saying that “Judges are not like pigs, hunting for truffles buried in the record.” (Mar. 21, 2025).  For another example, see Nonsensical Spellings and Fabricated Authority Signal Improper Use of Artificial Intelligence (Mar. 25, 2026).

An expert witness testifying in a lawsuit about liability for a Houston explosion that killed three people and destroyed roughly 200 homes used ChatGPT to write significant portions of his “expert report.” The man, who was hired by the industrial product conglomerate 3M, exposed his AI prompts publicly. They showed that he asked ChatGPT to help him “create an exceptional expert witness report defending the standard of care at 3M,” and that the report should “show how 3M is 0% at fault for the explosion at Watson Grinding.”

Mr. Koebler added:

The incident shows that artificial intelligence has made its way into courtrooms not just in AI-generated legal briefings, hallucinated cases, and adversarial “prompt injections,” but in expert witness testimonies. Court transcripts, deposition documents, and discovery records shared with 404 Media show extensive AI use in an extremely high profile case, where multiple people died and hundreds of millions of dollars in total liability are at stake in ongoing litigation about the explosion. The case also shows that the specific prompts used to create this type of expert testimony can be discoverable during a case, and that those prompts can be quite embarrassing.

The lawsuit centers on an explosion allegedly caused by a “degraded and poorly crimped” hose.  Dozens of homeowners have sued 3M.  Id.  The article reports that the expert was paid roughly $90,000.

The expert’s use of AI was discovered when plaintiff’s attorney, Will Moye, found a five-page document called “Citation Overlay” which he recognized as coming from ChatGPT.  He then demanded production of all of the prompts used to create the report.  Mr. Koebler reported:

ChatGPT created a roughly 30-page report that included the line “From a technical and standard-of-care standpoint, 3M is 0% responsible for the January 24, 2020 explosion.” This line did not make it into the final report filed with the court, because when Autenrieth later asked ChatGPT to “review this as the opposing council,” ChatGPT determined that writing “‘0% responsible’ is an easy target” for a lawyer to poke holes in, and is one of several “phrases [that] let opposing counsel paint you as an advocate rather than an expert.”

Mr. Moye is quoted as stating that the expert “acknowledged [at trial] the prompts he put in were biased toward 3M to help 3M win the case […] it’s really egregious.”  Mr. Moye said that many of the prompts were entered the night before the expert’s deposition, and Mr. Moye uncovered a lot:

[The expert] also asked ChatGPT to “grade” his report (it got a 97/100), and “what are the 5 main things in my report the prosecution could attack and how do I defend them?” He then asked ChatGPT if his resume was sufficient to be an expert witness; “will prosecution go after me for never having been [an expert witness] before based on wording and how do I defend that?”

Additional details and part of the transcript are published in Mr. Koebler’s post. The post states: “In the examination at trial, Moye and Autenrieth agree that the submitted report is ‘90 to 85 percent ChatGPT.’” Id.

Mr. Moye said that “every lawyer needs to make sure their own experts aren’t generating work product in a way that’s insincere, and then knowing you can subpoena the prompts […]”  Id.

In response, the expert said that he has a body of work and more than 20 years of experience in the relevant field of gas detection.  The article states: “He did not explain why he used ChatGPT, but said ‘my opinions were put in there, and AI helped me to draft a straw man to build off of,’ and added ‘I put information and opinions in up front before it ever generated […] if the output wasn’t of my opinion or what I agreed to, I did alter it.’”

The post states: “The jury in the 3M case awarded more than $61 million to the plaintiffs, apportioning 30 percent of the responsibility to 3M and 70 percent to Watson Grinding.” Id.

Mr. Moye’s website states: “The Watson Grinding and Manufacturing explosion occurred when a propylene gas leak ignited at the facility in northwest Houston, sending a massive fireball through the neighborhood. The blast killed three employees, injured many others, and caused an estimated $200 million in property damage.”

Thanks to Jason Koebler for his post.  This one is based entirely on his post, which has much more detail.

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.

The discovery issue turned on the roles of plaintiffs’ psychiatric injury expert, Dr. William Newman.  Dr. Newman was a “dual-hat expert” on the issue of negligent infliction of emotional distress (“NIED”).  He was a testifying expert as to some injured people and a non-testifying consultant as to others.

Dr. Newman interviewed “numerous individuals,” but produced only 17 reports.  “The briefing illustrates a stark disagreement about the number of interviews that were conducted. However, the Court need not resolve this dispute to address the merits of Defendant’s motion.”

During six days of depositions, “Newman refused, on the advice of Plaintiff’s counsel, to answer questions related to the interviews he conducted that did not result in a report.”  CSX asserted that it was entitled to any notes Dr. Newman took, regardless of whether he generated a report.

In response, “Plaintiffs assert that Defendant is not entitled to any information generated by Newman for interviews he conducted where no report was generated because the information is not relevant and because he was acting as a consulting expert and thus protected by Federal Rule of Civil Procedure 26(b)(4)(D).”

The court set out the governing standard as follows:

Dual-hat experts are single experts who serve both roles, as non-testifying consulting experts and as testifying experts. In the case of dual-hat experts, only materials generated or considered uniquely in the expert’s role as a consultant are exempt from the broader discovery rules for testifying experts…. If there is any ambiguity regarding the role played by a party’s consultant in reviewing or creating documents, it should be resolved in favor of the party seeking discovery.

Id. at * 2 (cleaned up).

The court’s first step was to examine relevancy—the scope of discovery: “Defendant … weakens its argument by conceding that the information sought merely ‘could be’ relevant…. The Court struggles to see how the information gleaned by Newman during interviews of individuals who do not have a pending claim for [negligent infliction of emotional distress] is relevant to a pending claim or defense.”  The court also rejected the defense theory that the information was relevant to credibility or methodology.

It then turned to the “dual-hat” issue:

Newman serves a dual purpose. He serves as a testifying expert for the 17 Plaintiffs with NIED claims; he also was a consulting expert for Plaintiffs who are not submitting that claim to the jury. As a dual-hat expert, materials generated or considered in his role as a consulting expert are not discoverable. Fed. R. Civ. P. 26(b)(4)(D). Defendant’s argument that Newman considered the information gleaned as part of the interviews at issue when forming his opinions as to the 17 Plaintiffs is unavailing and is contradicted by the record. In his deposition, Newman testified that he did not evaluate any Plaintiff “through the lens of another.”

The court added: “Even assuming that the requested information is relevant, there is no ambiguity in Newman’s role as a consulting expert for Plaintiffs who are not pursuing NIED claims, and Plaintiffs have sufficiently shown that Rule 26(b)(4)(D) applies….  Therefore, Defendant’s only remaining avenue for production would be through a showing of exceptional circumstances. It has failed to do so.”

The court held: “The materials generated by Newman related to individuals who are not pursuing a claim of NIED were generated pursuant to his role as a consultant and are exempt from disclosure. Therefore, the Court finds that Defendant is not entitled to discover his notes, unredacted schedules, or to depose Newman again.”

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.

GenAI is not a dictionary:

Indeed, the State of Illinois criminalizes the act of “grooming” as a Class 4 felony. 720 ILCS 5/11-25. Chaudhry and Alvi attach a generative artificial intelligence question and answer response as Exhibit 1 to their motion for summary judgment, in apparent support of an innocent construction of the word “groomer.” This argument is preposterous. No reasonable person could claim that in using the word “groom,” the article was actually just innocently claiming that Thorsen was a “man on his wedding day.” Chaudhry & Alvi Motion for Summary Judgment ex. 1 at p. 1. Nor that he was a “servant/official in a royal household.” Id. Nor that they were talking about “animal care.” Id. at p. 2. The obvious and only connotation is “[t]o establish trust with someone, often a child or vulnerable person, in order to exploit or abuse them… Example: The authorities investigated him for grooming teenagers online.” Id. The Court doesn’t believe that this is a proper use of generative artificial intelligence to define a term as envisioned by Judge Newsome. See Snell v. United Specialty, Inc., 102 F.4th 1208, 1221 (11th Cir. 2024).

Chaudhry v. Thorsen, 2026 WL 766048, n. 26 (N.D. Ill. Mar. 18, 2026)(emphasis added). Given the “grotesque length” of the opinion, id. at *21, this blog merely skims the surface.

Thorsen involved a social studies teacher who “was assigned to teach the impact of major world religions.” Ms. Aliya Chaudry was a student who questioned her religion. Teacher and student had numerous interactions. Ms. Chaudry eventually converted her religion. Her parents disapproved. They lodged a complaint.  Petitions and litigation followed.

The long and the short of it follows. Entering Jacobs High School, Aliya—the daughter of Chaudhry and Alvi—identified as Muslim but was actively questioning her faith. In two classes with Thorsen, she established a strong rapport with him. She trusted him enough to approach him and ask personal questions related to her faith, having conversations before and after school. She did this not because he was Christian—she didn’t even know he was Christian—but because he was a history teacher, and apparently a good one. In their conversations, Thorsen asked at least one offhanded question on two separate occasions related to an apparent controversy related to Islam. As Aliya gradually chose to convert from Islam to Christianity, Thorsen grew concerned for her well-being given the ongoing family dynamics that she professed to him. He connected her to resources in the community, some of which included his own personal connections: a neighbor, a pastor, and former students. He also, at her request, gave her a Bible from one of these connections.

After learning of Aliya’s conversion, Chaudhry and Alvi were deeply hurt, and took several actions in response. First, they complained to the school, resulting in Thorsen’s separation from the school district. Second, they filed this lawsuit. And finally, they spoke to the media.

“Grooming” became an issue in the tort claims: “[I]f Chaudhry and Alvi published a statement that Thorsen ‘groomed’ Aliya, this would constitute defamation per se. Every reasonable person knows what ‘grooming’ means in the context of a teacher-child relationship. And calling Thorsen one at least imputes a lack of integrity onto him in performing his duties as a teacher. For their part, Chaudhry and Alvi claim that although they know the context in which ‘grooming’ can be seen, it wasn’t meant that way.” They used GenAI, unsuccessfully, to support their position.

It was alleged that the student was coerced.  The court wrote:

But reflecting on her experience in high school, Aliya herself denies having been brainwashed and believes Thorsen was an “amazing” teacher.…  Aliya reported being familiar with the term “grooming” as being generally used in the context of sexual abuse and denied Thorsen grooming or indoctrinating her…. Yosuf Chaudhry acknowledged that the word “grooming” is used to describe pedophiles but denied intending for it to be used that way in the article….. Likewise, Amena Alvi acknowledged that people use the term “grooming” with a sexual connotation, but denied that being her intent…. Aliya was not asked by her parents whether she researched religion on her own before they gave the interview.

On the merits, the court wrote: “But there is material dispute of fact as to whether they did in fact publish that Thorsen was a ‘groomer’ or otherwise ‘groomed’ Aliya, foreclosing the possibility of summary judgment on the issue. Certainly the article calls Thorsen a groomer. However, it is not set in quotation marks, and it is not clear whether this defamatory word came from Chaudhry and Alvi, or if it was the writer’s own interpretation.”

This six-year long case resulted in a complex and lengthy opinion on the merits.  “On the topic of judicial resources, the parties did the Court no favors in their briefing of these issues. Combined, parties expended nearly 850 pages on factual statements, responses, and exhibits…. And in reality, this 850-page tally is understated by nature of the depositions being provided in Min-U-Script quad format, with four pages of text produced on one page. Despite this, both parties still thought it necessary to devote another seven pages to facts in each of their fifteen-page memoranda. Then did it again in the responses.”

The court wrote: “Shockingly, Chaudhry and Alvi’s counsel never bothered to interview Aliya before filing the litigation. Fed. R. Civ. P. 11(b)(3). A reasonable, competent counsel would have done so, then thought twice—if not more—about filing this action.”

However, the student’s counsel was commended: “The Court profusely thanks attorneys Daniel Weiss and Brandon Polcik for accepting the Court’s assignment to represent Aliya in this litigation. The Court assigned Mr. Weiss and Mr. Polcik….  Again, the Court thanks assigned counsel for representing Aliya during this difficult litigation….  The Court’s concern for Aliya’s wellbeing was a basis to assign these excellent attorneys.”

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].

In Allen, outside counsel had asked her support staff to gather certain records. “Ms. Allen maintained work product protection over these materials because she had selected the specific documents she wanted to review and had arranged these records in a manner useful for her to review in anticipation of litigation.” Aliev, 2026 WL 202549, at *2.

The Fourth Circuit agreed with Ms. Allen (who was appealing from a contempt holding based on her refusal to produce them) that “Allen’s selection and compilation of these particular documents reveals her thought process and theories regarding this litigation.” Id.

The Aliev court wrote:

Important to the Fourth Circuit, as reflected from the cases it cited and the parentheticals it included, was that Ms. Allen had selected specific documents from a larger universe of material and that producing the specific documents that she had selected would reveal her thought process and theories about the litigation.

Id. (emphasis added).  Thus, where there are “reams of documents,” counsel’s selection and compilation of documents “is often more crucial than legal research….” Id. (citation omitted). And, counsel’s “selective review” is based on “professional judgment.” Id.

Of course, the universe of documents is not protected: “The Fourth Circuit made clear… that the universe of documents, including the documents Ms. Allen had selected, were not protected from disclosure.”  Id. at *3. The narrow holding was that “Ms. Allen was not required to produce as a separate category of documents the specific ones that she had selected and arranged.”  Id.

In Aliev, Trans Union argued that Allen protected its redactions in four sets of documents. The court explained that:

In this Fair Credit Reporting Act case, in response to Plaintiff’s request to produce documents, Trans Union redacted several documents, in whole or in part, and produced a privilege log with 20 entries for documents across a Bates range from TU 00001 to TU 00236. Nineteen of the 20 documents are described as “[d]ocument exported from Trans Union’s Customer Service Relations System [or “exported from CRS”] titled [name of document] depicting actions taken with respect to file at the direction of counsel.” (Defendant’s Privilege Log Entry Nos. 3–22.) The one other document is described as a “[d]ocument exported from Trans Union’s Customer Service Relation System depicting actions taken with respect to the file.” (Defendant’s Privilege Log Entry No. 1.) The assertions of privilege state that the protected material either reflects (1) “actions taken in anticipation of litigation at the direction of counsel pursuant to the attorney work-product doctrine,” or (2) “information compiled at the direction of counsel for anticipated litigation-related analysis.”

The Aliev court directed an in camera review and a proffer to support the privilege designations. Id. at *1.  Oversimplifying, Trans Union essentially proffered that the redacted information identified documents that internal counsel collected or printed for expected litigation, and comments by internal counsel regarding actions that counsel and staff took.

As to some of the documents:

The Court overrules the privilege designations on the Summary Report for two reasons. First, Trans Union redacts more than what internal counsel asked support personnel to print…. Second, unlike In re Allen, the redactions to the Summary Report make clear that Trans Union’s counsel did not request that support personnel print only selected documents from a larger universe, which may have revealed counsel’s thought process about the case. Instead, the Summary Report reflects that counsel asked support personnel to print Plaintiff’s entire credit file.

Id. at *3 (emphasis added). Further, as to others, “the redacted information contains no opinions of counsel about why he directed support personnel to print Plaintiff’s credit file. Instead, the reason relates to an external act: either the service of a subpoena or a lawsuit, facts that are not privileged.” Id. at *3.

As to some other documents, the redactions “may relate to attorney-client communications, and the Court sustains them.” That appears to me to be a holding based on content, not on selection and ordering of documents.

This blog was initially posted on  Electronic Discovery Reference Model.

I have written about related topics in:

• Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025);
• Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025);
• Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025).

The Carefirst court quoted precedent stating:

For example, an entry on a privilege log could be … an admission that a privileged communication took place on a certain day. Sometimes the existence of an attorney-client communication, in and of itself, can have a bearing on the issues at trial.

However, the Carefirst court cautioned that a negative inference should not be drawn from a proper invocation of privilege. Id.  Further, descriptions in a privilege log cannot be used to impeach a witness who did not write those descriptions. Id.

The court wrote: “As it has made clear throughout its briefing, CareFirst seeks to rely on J&J’s privilege log and document metadata as evidence in support of its theory that J&J knew about the four Momenta manufacturing patents at the time it acquired Momenta and that J&J intended to acquire the manufacturing patents for an anticompetitive purpose.”  Id. at *3.

J&J moved in limine to preclude Carefirst “referencing misleading privilege log entries and making arguments regarding facts not in evidence,” asserting that it “would require the jury to make an impermissible negative inference about the privileged content.” Id.

Carefirst is a complex monopolization case, and the court engaged in a detailed analysis of metadata fields that may not have any application to other factual situations. However, the court concluded:

For clarity, the Court finds the following uses of J&J’s privilege log may be admissible subject to CareFirst laying a proper foundation as to the meaning of the metadata fields: (1) use of the “Created/Sent Date” metadata field for the purpose of showing the fact of a document’s creation or download, if presented in conjunction with the FamilyID field to provide the context of whether the document was part of a family; and (2) use of the “Created/Sent Date” metadata field for emails as well as the custodian, sender, and recipient metadata fields to show the fact of communication. CareFirst’s characterization of deposition testimony based on the facts in evidence and absent an impermissible negative inference about the content of privileged material is also admissible.

The Court finds the following uses of the privilege log and/or metadata are inadmissible: (1) use of any privilege log entries to demonstrate that particular entries are related based on the “Created/Sent Date” of the entries and/or the subject lines of emails; (2) invocations of privilege during deposition.

Id. at *6-7. The Carefirst court did not “rule out” the possibility that the privilege log could be used for impeachment. Id. at n. 12.

Although authorities are not uniform, privilege logs have been used as evidence that the duty to preserve was triggered by assertions of work product:

• Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered?(Nov. 5, 2024);
• Designation of “Work Product” Supports Inference of Intentional Spoliation(Jun. 27, 2024);
• When Did the Duty to Preserve Arise? – At Time of Plaintiff’s Pre-Suit Investigation(May 11, 2025).

On a related issue, see A Request to File a Privilege Log Under Seal Was Denied (Aug. 27, 2024).

This blog was initially posted on  Electronic Discovery Reference Model.