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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This blog was initially posted on  Electronic Discovery Reference Model

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

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

WERE DEFENDANTS’ SELF-COLLECTION EFFORTS SUFFICIENT?

The Parties’ Contentions

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

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

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

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

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

Discovery on Discovery

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

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

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

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

Defendants’ Efforts Were Insufficient

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

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

Self-Collection Should Be Supervised by Counsel

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

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

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

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

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

Defendants’ attorney in Yas Caribe wrote:

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

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

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

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

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

Of course, where there is a prima facie showing of spoliation, an attorney may be compelled to disclose how the litigation hold was implemented and how the search was conducted. The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

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

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

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

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

Application of Principles to Facts Presented

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

• The Case of the Missing Lab Notebooks (Aug. 28, 2026);
• “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” – E-Discovery LLC (Feb. 19, 2026);
• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Limited “Discovery on Discovery” Permitted; Judicial Definitions of “Hit Report” and “Families” Held Unnecessary (Oct. 13, 2025);
• “Discovery on Discovery” Permitted (Sep. 4, 2025);
• Guidelines for “Discovery on Discovery” (Aug. 5, 2025);
• Request for “Discovery on Discovery” Was Overbroad; Uber Deponent Was Ordered to Bring Uber Laptop to Deposition; Discovery About Uber Information Governance Training Resolved (Jul. 4, 2025);
• Google Avoids Discovery on Discovery Based on Insufficient Foundation for Request (De. 18, 2024);
• The Hon. Paul W. Grimm, M. Berman, et al., “Discovery About Discovery Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

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

____

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

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

In a prior post, I wrote that sometimes government personnel use personal systems to conduct government business.  I suggested that it is not a good idea.

A Reuters article authored by Nate Raymond, Former Fauci adviser pleads guilty to conspiring to conceal records (Aug. 19, 2026), reinforces that idea:

A former adviser to infectious disease expert Anthony Fauci pleaded guilty on Tuesday to conspiring to evade public records laws and conceal government documents related to grant research funding and the COVID-19 pandemic….  The 78-year-old had been indicted in April on charges related to what prosecutors said was a scheme to thwart public records requests received by the agency beginning in April 2020 related to COVID-19 research grants.

The relevant part of the Reuters article is:  “Anticipating their communications would be sought through Freedom of Information Act requests, Morens and others agreed to correspond using Morens’ personal email account instead of his government one, prosecutors said.” [emphasis added].

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.

The Court ORDERS a counsel-supervised search of personal email and personal cell phone data, including messaging applications, for Dumont, Catalano, Barnes, Pepoli, Fonseca, and Hillis. The search shall use the proposed search terms—“Derrick Washington,” “Washington,” “DW,” “W89316,” “BLACC,” and “Black, Latino, Asian Cultural Coalition”—and shall be limited to the period from November 1, 2019 through August 1, 2020.

The search shall be conducted by, or directly overseen by, defense counsel. It shall not be left to the individual Defendants to determine unilaterally whether potentially responsive communications exist. The Court does not require wholesale forensic imaging of any personal device. ….

As to the remaining individual Defendants, each shall file on the docket a sworn affidavit by September 16, 2026 attesting that, after conducting a diligent search consistent with the parameters above, Defendants do not have any communications responsive to the above search terms.

Washington v. Mass. Dept. of Corrections, et al., 2026 WL 2454275 (D. Mass. Aug. 21, 2026)(emphasis added).

For a discussion of a parallel issue regarding use of personal devices in the private sector, please see Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May, 20, 2024).

For a discussion of the requirement of attorney supervision of a client search, please see:

• “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024);
• Maker’s Mark: A Different View of Self Collection (Aug. 3, 2021);
• Unsupervised Self-Collection Predictably Led to Problems (Jan. 2, 2021);
• Self-Identification and Self-Preservation: A Fool for a Client? (May 26, 2011).

This blog was initially posted on  Electronic Discovery Reference Model

DIGITAL MEDIA OFFERED IN OPEN COURT

Paper exhibits are the default choice.  Maryland Rule 20-106(e)(1) states: “Unless otherwise approved by the court, a document offered into evidence as an exhibit in open court shall be offered in paper form. The document shall be appropriately marked.”

However, Maryland’s Digital Media Rule, Rule 20-106(e)(3), states: “Digital media offered in open court and included in the record pursuant to Rule 2-516, 3-516, or 4-322 shall be (A) submitted using a digital storage platform approved by the State Court Administrator and (B) referenced in the MDEC system by docket entry.”  [emphasis added].

Rule 1-202(j) defines digital media as “material in an audio, audiovisual, or video format that can be transmitted and stored electronically.”

The Rule applies to “digital media” included in the record under Rule 2-516, Rule 3-516, or Rule 4-322.  The first two Rules address civil lawsuit. Rule 4-322 applies to criminal cases.

• In courts of general jurisdiction, the Circuit Courts, Rule 2-516(b)(1)(A) states that: “A party who offers or uses an audio, audiovisual, or video recording at a hearing or trial shall: (A) ensure that the recording is marked for identification and made part of the record and that an additional copy is provided to the court….”
  • The Committee Note to Rule 2-516 adds: “A party may provide the court with a copy of a recording in a physical media format or in a digital media format using a digital storage platform approved by the State Court Administrator.”
  • The Rule states: “A party who offers or uses a transcript of the recording at a hearing or trial shall ensure that the transcript is made part of the record.”
  • The circuit court can appoint an alternate custodian under Rule 2-516(a)(2): “Unless the court orders otherwise, all exhibits shall remain in the custody of the clerk.  If the court orders that the custodian of an exhibit be someone other than the clerk, the court shall: (A) state the identity of the custodian on the record; (B) instruct the custodian, until relieved of the responsibility by law or by court order, to secure the exhibit until final determination of the action, including all appellate proceedings, and retain the exhibit as required by Rule 16-405 and any statutory retention provisions; and (C) instruct the clerk to make a docket entry identifying the court-ordered custodian of the exhibit.” [emphasis added].
• In the State of Maryland courts of limited jurisdiction, the District Courts, Rule 3-516(a) states
  • That “[a]ll exhibits marked for identification at hearing or trial, whether or not offered in evidence and, if offered, whether or not admitted, form part of the record.”
  • Subsection (a) adds: “With leave of court, a party may substitute a photograph or copy for any exhibit.”
  • The new Rule also states in Subsection (b): “In an action where an appeal would be tried de novo, exhibits shall be returned to the parties at the conclusion of the proceeding unless the court orders otherwise.”
  • Under Subsection (c), in an action where an appeal would be heard on the record made in the District Court, exhibits shall remain in the custody of the District Court clerk unless the court orders otherwise.” [emphasis added].

Rule 7-109 addresses use of digital media in on-the-record appeal. A Committee Note states: “Exhibits that are audio, audiovisual, or video recordings may be stored and accessed using a digital storage platform approved by the State Court Administrator.  Absent any dispute as to the authenticity or accuracy of the file, the file stored on the approved digital storage platform is considered the original for the purposes of this Rule.”

• Rule 4-322(c) applies in criminal matters.
  • It generally tracks Rule 2-516 and permits an alternative custodian. It provides for the return of exhibits in the case of a de novo appeal.
  • Subsection (b) adds: “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.”

Notably, under Rule 20-301(b): “A hyperlink embedded in a submission is not a part of the official record unless it is linked to another document that is a part of the official record.”

DIGITAL MEDIA SUBMITTED WITH MOTIONS

Under Rule 1-322(a), filing of pleadings, papers, and other items, is with the Clerk and “[n]o item may be filed directly by electronic transmission, except…  (6) digital media submitted using a digital storage platform approved by the State Court Administrator.” The Reporter’s Note added: “Proposed new subsection (a)(6) authorizes digital media, as defined by Rule 1-202, to be transmitted using a digital storage platform approved by the State Court Administrator.”

Rule 20-301(a)(4) (“official record”) states that the official record of an action will include all “audio, audiovisual, or video recording exhibits, including digital media,” that are made part of the record under Rule 2-516, 3-516, or 4-322.

The Reporter’s Note added: “Recordings made part of the record pursuant to Rule 2-516, Rule 3-516, or Rule 4-322 may be on physical media, such as a hard drive, disc, or flash drive, but also may be submitted digitally using an approved platform. The current provisions of Rule 20-301 do not incorporate a digital submission that is stored outside of MDEC[1] into the official record in an action.”  [emphasis added].

RECORD IN APPELLATE COURTS

The Committee Note to Rule 8-413(a)(4) (contents of the record on appeal) states that “the original of any audio, audiovisual, or video recording made part of the record pursuant to Rules 2-516, 3-516, or 4-322” is part of the record on appeal.  The Committee Note adds:  “Exhibits that are audio, audiovisual, or video recordings may be stored and accessed using a digital storage platform approved by the State Court Administrator. Absent any dispute as to the authenticity or accuracy of the file, the file stored on the approved digital storage platform is considered the original for the purposes of this Rule.”

It adds that: “A party who offers or uses an audio, audiovisual, or video recording in a format not in common use by the general public is required to provide the recording to the clerk in a medium and format suitable for transmittal as part of the record. See Rule 2-516 (b) and Rule 4-322 (c) pertaining to the use of a recording at a hearing or trial.”

Further, the certificate of the clerk of the lower court shall identify “any digital media included in the record and instructions for access by the appellate court….”

MDEC Rule 16-905(d) states: “If a case record consists of digital media, a copy of the record shall consist of a document containing instructions for accessing the digital media.”

Rule 20-101(f) states: “Electronic filing” does not include digital media submitted and maintained on a digital storage platform approved by the State Court Administrator.

Rule 16-918(a, c) provides for public access to digital media at court kiosks. However, Rule 16-905(e) provides: “A custodian may remove metadata from an electronic document before providing the electronic document to an applicant by using a software program or function or converting the electronic document into a different format.”

This blog was initially posted on  Electronic Discovery Reference Model.

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[1] “MDEC” is the Maryland court’s electronic filing system.  See Rule 20-101(m).  “MDEC” is the acronym for “Maryland Electronic Courts.”  It has two components: 1) electronic filing; and, 2) electronic case management.

The recent decision in Lalwani v. Trustees of Indiana University, 2026 WL 1847881 (Jun. 26, 2026), involved three emails in which, an employee, plaintiff  Mr. Lalwani, had communicated with his lawyers using the employer-defendant university’s email system. The core holding was:

Indiana University is a public institution subject to an open records law and has an IT policy providing notice to its employees (including Lalwani) that they should have no expectation of privacy in Emails stored on the University’s servers. Lalwani communicated about his highly personal matters via his employer’s email system on his own volition and to his own peril.

Id. at *5 (emphasis added). The Lalwani court added: “Here, Lalwani seeks Court intervention to protect Emails that he himself took no efforts to protect. He chose not to identify them or to timely assert a privilege to shield them via a privilege log. Moreover, throughout the discovery process in this case Lalwani has demanded overbroad and extensive searching of other custodian email accounts; therefore, he cannot claim surprise that his own email account would also be subject to scrutiny.” Id. at *6.  Further, the court warned against continuation of threats against defense counsel.

The three emails were saved on Lalwani’s University email account. The court wrote: “The Emails were neither produced by Lalwani during discovery nor inadvertently disclosed by Lalwani. Instead, the University Defendants discovered the Emails when searching their server for documents. Upon finding the Emails to be between Lalwani and lawyers, the University Defendants identified the Emails, notified Plaintiff, limited their review, and sequestered the Emails.”  Id. at *1.  That is, of course, the proper way to handle such a situation.

The University argued that the emails were discoverable and that plaintiff had waived any applicable privilege.  “Specifically, the University Defendants contend Lalwani cannot assert attorney-client privilege over communications stored on the university server.”  Id. at *1.  They also argued that plaintiff had failed to provide a privilege log.

“In response, Lalwani contends the Emails are protected under the Quick Peek Order…, are outside the five-year timeframe for responsive documents as outlined in this Court’s March 4 Order…, and also are protected by both the work product doctrine and the attorney-client privilege.” Id. He sought an order compelling the University to “immediately return and destroy every document they retrieved from Dr. Lalwani’s IU custodian account.”  Id. at *2.

In reply, the University asked for in camera review and an order permitting it to review and use non-privileged communications.

After in camera review, the court addressed the issues.

“The Quick Peek Order provides that ‘[a] document’s disclosure as part of a Preliminary Production under the Agreement does not constitute a waiver of any privilege. Pursuant to [Federal Rule of Evidence] 502(d), this waiver protection extends to all state and federal proceedings.’” The court agreed that Mr. Lalwani’s reliance on it was “misplaced” because this was not an instance of inadvertent production.  The order applied only to documents produced by Mr. Lalwani and the three emails had not been produced by him.[1]

The court had established a five-year time frame for discovery. Mr. Lalwani argued that the three emails were outside of those date parameters. The court determined that this argument was also “misplaced” because, again, it governed discovery and only documents produced “in response” to the order came within its scope. Thus, the temporal limitation did not protect Mr. Lalwani. Id. at *2.

“Lalwani also argues the work product doctrine protects the Emails, because the Emails were prepared in anticipation of litigation.” Id. at *3.  That argument failed on its facts. The court wrote: “The Undersigned performed an in camera review of the Emails and determined that the Emails are not communications prepared by attorneys in anticipation of this litigation or made as part of the adversary process. Instead, the Emails are Lalwani’s own communications and concern a non-party to this case and factual events distinct from the Lalwani’s employment, i.e., of an entirely different subject matter than the present case.”  Id.

Finally, the court wrote: “Lalwani contends the Emails are also protected under the attorney-client privilege. Of all the arguments Lalwani lodged in opposition to the Emails, this argument is the one that comes closest to the mark. However, some courts in our circuit have faced similar circumstances and already provided instructive analysis of the same arguments advanced here.”  Id. at *3.

The Lalwani court reasoned: “Key to analysis of the treatment of the Emails here is whether a reasonable expectation of privacy can exist for emails transmitted on the university’s server.” Id. at *3. It wrote that “Indiana University… is a public institution subject to an open records act.”  Id. at *4. A “core principle” of that statute is that public records are open. Id.

Further, the court looked at the University’s information governance policy.  Under that policy, the court held that there was no reasonable expectation of confidentiality. Id. at *5. The policy stated that “users should be aware that because IU is a public institution, and members of the University community are engaged in institutional and academic research projects that may require access to certain de-identified user data, and because the university must be able to ensure the integrity and continuity of its operations, use of the university’s information resources cannot be completely private. For example, in addition to the types of permissible access described above, when users engage in incidental personal use of their university email accounts, the contents of their email may be subject to disclosure in response to requests under Indiana’s ‘open records’ law….” Id. at *4 (emphasis added by the court).  Additionally, Indiana notified employees that they should have no expectation of privacy. Id.

The Lalwani court also ruled that Lalwani’s failure to provide a privilege log “undermines his assertion of privilege.” Id. at *5.  “Lalwani’s after-the-fact production of a privilege log is too little, too late. If Lalwani intended to protect the Emails, he should have logged them on a privilege log when responding to written discovery requests to properly preserve the opportunity to argue privilege. He did not do so. Rather than recognizing that he had used his University email account to communicate about legal matters in the past and taking precautionary steps to address that with assistance from his lawyer, Lalwani waited until after he received notice of the Emails from the University Defendants.” Id. at *5. The court added:

Then, he cried foul, lodged a litany of objections and accusations against defense counsel, and demanded sanctions. Indeed, if the client cares so little for the confidentiality of the communications as to fail to take steps to insure against unintended disclosures, it is hard to justify requiring the court to take elaborate measures to protect the client against the results of his own carelessness.

Id. (cleaned up).

The court held that the three emails were not protected and denied Mr. Lalwani’s request for an order that they be returned or destroyed.

As noted above, Plaintiff made a  number of attacks, including one of a motion for civil contempt and “a motion to disqualify [Defendants’ counsel’s firm]; and referral of [defense counsel’s] conduct to the Indiana Supreme Court Disciplinary Commission.”  Id. at n. 2.  In a stern warning about civility and cooperation, the court added:

Requiring assistance and court intervention each time an issue arises should not be the norm, nor should accusations of bad faith be lodged at every turn. More troubling, personal attacks and threats to coerce agreement have been lobbed against the University Defendants and their counsel.

To be clear: threats to report counsel to the Indiana Supreme Court Disciplinary Commission and/or to pursue efforts to punish by state court proceedings have not been supported by the record, are not well-taken, and should immediately cease. Indeed, such threats may well violate the Rules of Professional Responsibility. Further caution will not be afforded; any such future conduct will be subject to sanctions.

Id. at *7.

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

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[1] In my opinion, the order was a non-waiver order, not a “quick peek” order. The term “quick peek” is found in the Advisory Committee Notes to Fed.R.Evid. 502.  See  Courts Cannot Order a “Quick Peek” Without Consent (Jan. 16, 2021). “Under the quick peek agreement, the parties agree that the Producing Party may produce responsive documents without first reviewing them for privileged or protected information, but specifically reserves and preserves the right to assert the privilege. The Receiving Party then reviews the documents and selects the documents it wishes to have copied. At this point, the Producing Party carefully reviews this (much narrower) universe of documents that will be formally copied and produced and withholds any documents that are privileged or protected.” Henry S. Noyes, “Federal Rule of Evidence 502: Stirring the State Law of Privilege and Professional Responsibility with A Federal Stick,” 66 Wash. & Lee L. Rev. 673, 691–92 (2009).

• One important holding is that a party cannot blindly rely on its document destruction policy as a defense to a motion for spoliation sanctions. Simply stated, that is no longer a “safe harbor.”
• A second important holding is that deposition testimony is not an adequate replacement for contemporaneous records that went missing after the duty to preserve was triggered.

In Round I, EEOC v. Mia Aesthetics Clinic ATL, LLC, 2025 WL 1661474 (N.D. Ga. May 30, 2025), the EEOC prevailed on several discovery disputes. It did so, in my opinion, because its attorneys did their homework and supported their litigation position with facts.  See “Diligent Search,” But No Responsive Data, is Insufficient Response (Jun. 10, 2025).  Metrics matter.

In Round II, EEOC v. Mia Aesthetics Clinic, ATL, LLC, 2025 WL 2417759 (N.D. Ga. Aug. 18, 2025)(“Mia Aesthetics II”), Mia Aesthetics, in my words, tried to “rewrite” a court order.  That unsuccessful effort led to appointment of a third-party ESI vendor at defendants’ cost.  See Litigants’ Effort to Effectively “Rewrite”  Court Order Led to Appointment of Third-Party Vendor (Aug. 21, 2025)(“The EEOC appears to have done everything right.  To give only one example, when Mia Aesthetics provided a response that the EEOC felt was deficient, instead of prematurely going back to court, it contacted Mia Aesthetics and requested ‘cure.’”).

Round III arises out of those decisions. EEOC v. Mia Aesthetics Clinic ATL, LLC, 2026 WL 1045366 (N.D. Ga. Apr. 7, 2026)(“Mia Aesthetics III”).  The court wrote:

Now before the Court is another in a long line of discovery disputes between the EEOC and Defendants (“Mia Aesthetics”). The discovery disputes began on April 28, 2025 with a Motion to Compel filed by the EEOC…. After full briefing, the Court ordered Mia Aesthetics to “conduct another, thorough search of their files for responsive data.” …. In particular, the Court required Mia Aesthetics to conduct another search for Salesforce data, email files, Google Voice data, and Slack data…. As part of that Order, the Court gave the EEOC two weeks following the deadline for Defendants’ renewed production to file objections to the production….

The EEOC filed objections to the renewed production…. After full briefing on those objections…, the Court entered yet another Order. …. This time, the Court found that Mia Aesthetics had failed to Comply with the Court’s prior Order…. As a result of Defendants’ failure to comply with the Order…, the Court required Defendants to hire a third-party e-discovery vendor to assist them in conducting a renewed search for responsive information…. At the conclusion of this Order…, the Court allowed the EEOC to file renewed objections by September 29, 2025….

That brings us to the briefing now before the Court. On September 29, 2025, the EEOC filed another set of objections to the newest attempt at compliance by Mia Aesthetics, which includes a request for spoliation sanctions…. Those objections are now fully briefed and ripe for the Court’s review.

The outcome of those objections was a Report by the U.S. Magistrate Judge that favored the EEOC:

Seeing as the EEOC has been prejudiced by the lost data, the Court RECOMMENDS the Court impose the following discovery sanction: (1) there is a genuine issue of material fact for purposes of summary judgment with respect to the reasonability of Webb’s request to work remotely, whether such an accommodation would have imposed an undue hardship on Defendants, and Webb’s attendance during her employment with Defendants…; and (2) the parties are allowed to “present evidence to the jury concerning the loss and likely relevance of [the lost] information and instruct[ ] the jury that it may consider that evidence, along with all other evidence in the case, in making its decision.” Fed. R. Civ. P. 37 advisory committee’s note to 2015 amendment.

It is further ORDERED that the discovery period be extended for 30 days for the limited purpose of the EEOC completing the three remaining depositions following the District Judge’s ruling on this report and recommendation.

Essentially, the EEOC swept the table because it showed “what happened (or did not happen) between the Court’s August 18, 2025 Order… and that Order’s September 18, 2025 production deadline.”  Id. at *1.  Mia Aesthetics produced 22 emails, one of which had been previously produced, consisting of 44 pages. The court wrote: “No Salesforce, Slack, or Google Voice data was included in this September 18 production.”

Before filing the instant motion, the EEOC asked Mia Aesthetics to explain why ESI was missing.  Mia Aesthetics responded that it had hired a third-party vendor.  It provide PST files to the vendor and the vendor also searched Salesforce.  Mia Aesthetics’ counsel contacted Salesforce, Slack representatives and made efforts to locate Google Voice data. Id. at *1.

While the court provides additional details, the result was not good: “Ultimately, Counsel for Defendants basically explains that while Defendants did find some additional responsive materials in the form of emails, the Salesforce, Slack, and Google Voice data had simply been destroyed by their various custodians.”

In Mia Aesthetics III, the EEOC sought sanctions based on the missing non-email ESI.

The court comprehensively analyzed the date on which the duty to preserve was triggered. Id. at *4-5.  The more interesting issue was the disposition of Mia Aesthetics’ defense based on its information governance policy.  It argued that the EEOC improperly “asks the Court to punish Defendants’ failure to suspend routine operation of various ancillary data systems.”

The Mia Aesthetics III court rejected that “safe harbor” defense, writing:

Defendants point to their “routine operation of various ancillary data systems” and the fact that there was no indication that Webb’s Salesforce data had any bearing on her accommodation request or decision to terminate her employment…. For one, Defendants cannot simply rely on their own document preservation practices as a good reason for the data no longer existing. This would create a perverse result where companies with poor or inadequate document preservation policies would in fact be rewarded for adopting those very policies. More importantly, though, both binding and persuasive case law forbids reliance on such policies. [emphasis added].

Prior to 2015, the “safe harbor” provision of Fed.R.Civ.P. 37 prohibited sanctions under the Rules, except in extraordinary circumstances, when ESI went missing due to the routine, good faith operation of an information technology system.  After the Duke Conference, Fed.R.Civ.P. 37(e) replaced that shallow “safe harbor.” Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure (Jun. 2, 2022)(“perhaps most significantly, the old ‘safe harbor’ provision of Rule 37 was demoted to an Advisory Committee note and replaced with a fully-revamped sanctions rule, Fed.R.Civ.P. 37(e).”).

For more information on the demise of the “safe harbor” rule, please visit:

• Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024);
• Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule,” Maryland State Bar Ass’n. White Paper(2022);
• It’s Time to Replace Maryland’s “Safe Harbor” Rule (Nov. 8, 2022).

The Mia Aesthetics III court also considered the secondary evidence provision of Rule 37(e).  That clause bars sanctions if the missing ESI can be restored or replaced.

Mia Aesthetics argued that there was satisfactory secondary evidence about the feasibility of remote work, contending: “Ms. Webb herself can testify to how she performed her duties and what tools she used. The EEOC has deposed or can depose Ms. Webb’s supervisors and co-workers about how work was done and whether being in-office made a difference.”

The court disagreed:

[D]eposing workers well after an event is not a perfect substitute for reviewing more contemporaneous data points…. Moreover, it is not hard to see how after-the-fact deposition testimony, from Webb, would pale in comparison to the potential persuasiveness of concrete data showing Webb’s attendance or sales performance.

Id. at *7 (cleaned up).  The Mia Aesthetics III court explained: “Here, it is at the very least conceivable that the lost data could show, among other things, whether Webb performed tasks remotely, whether Defendants’ operations could have been performed remotely, and whether Webb was working remotely with Defendants’ approval at times Defendants now claim she was absent.”

Thus, the Mia Aesthetics III court held that “the lost data here cannot be restored or replaced through additional discovery.”

For more information on the secondary evidence principle, please visit:

• Secondary Evidence of Missing Video Permitted (Dec. 10, 2023);
• Secondary Evidence as a “Gap Filler” (Mar. 11, 2022);
• Satisfactory Secondary Evidence Prevents Sanction (Sep. 4, 2021);
• Damage Control Method (May 13, 2021);
• Berman and R. Shapiro, Rachel Shapiro, Esq., reprinted as Apx. F to M. Berman, et al.,eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020).

The Mia Aesthetics III court wrote: “Incredibly, counsel for Defendants noted in his September 25, 2025 letter that Defendants ‘discarded’ all computers used in 2021, presumably to include Webb’s, in 2023—one to two years after receiving notice of Webb’s [EEOC] charge.”  Id. at n. 2.

After a lengthy discussion, the court held that “intent to deprive” had not been shown for sanctions under Rule 37(e)(2).  Instead, it found prejudice and recommended curative sanctions under Rule 37(e)(1).

Mia Aesthetics filed objections to the Magistrate Judge’s Report and Recommendation. ECF 66 (Apr. 22, 2026). The EEOC has replied. ECF 67 (Apr. 30, 2026).  The issues were submitted to the District Judge on May 7, 2026.

This blog was initially posted on  Electronic Discovery Reference Model.

In a nutshell, Nippon provides employer-based insurance. It claims that it provided benefits to an insured employee and later terminated those benefits.  The insured sued and the case settled. Nippon paid some money and obtained a general release from and by the insured.

About a year later, the insured came to the belief that the settlement agreement was invalid.  The insured consulted her attorney who refuted the allegations.

The insured uploaded her attorney’s letter to ChatGPT and obtained output that supported her belief.  Appearing pro se, she allegedly filed two lawsuits and multiple papers making allegations that Nippon asserts are groundless.

Nippon contends that ChatGPT made the costly litigation possible and that ChapGPT was engaged in the unauthorized practice of law.  At present, this blog is based entirely on the allegations in the March 4, 2026, Complaint.  On October 29, 2025, OpenAI changed its policy and prohibited the use of ChatGPT for “tailored legal advice.” Compl., ¶41.  Many allegations predate that change, e.g., id., ¶¶53, 57, passim.

SOME BACKGROUND

In U.S. v. Heppner, __ F. Supp. 3d __, 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026),  Mr. Heppner’s use of A.I. was not a communication between a client and an attorney. See generally A.I. Documents Deemed Not Privileged (Feb. 12, 2026). The court wrote that “Heppner does not, and indeed could not, maintain that Claude is an attorney.”  It noted that “Claude disclaims providing legal advice.”

The court in Warner v. Gilbarco, Inc., 2026 WL 373043 (E.D. Mich. Feb. 10, 2026), wrote that: “When someone types a prompt into Claude or ChatGPT, they are not publishing anything. They are not posting to a timeline or sharing with friends or followers. They are having a one-to-one interaction with a software tool in what is functionally a private workspace.”  See generally “Two Courts, Two Answers: When Does Using AI Waive Privilege?” (Mar. 3, 2026).

Prof. Ira P. Robbins wrote that “[e]ven if one charitably characterizes certain AI tools as ‘counselor-like’ or ‘paralegal-like,’ the law protects relationships, not functionalities. A calculator can compute like an accountant, but nobody suggests a calculator privilege. The same logic applies to a generative model that drafts a brief or offers a cognitive behavioral therapy exercise; simulation does not create a privileged tie.”  He wrote that AI is not a “legal person.”  He suggests: “A [non-attorney] user who queries a standalone AI system outside a lawyer-client relationship is not communicating with counsel through an agent.” See generally “Against an AI Privilege” – Are Prompts Discoverable?  Is Output? (Jan. 2, 2026).

NIPPON’S ALLEGATIONS

With that in mind, I turn to the allegations in the Nippon Complaint.

Nippon sued two OpenAI entities for tortious interference with contract, “unlicensed practice of law,” and abuse of process.  Compl., ¶1.  It is alleged that:

This action arises from OPENAI’s collective conduct, through its artificial intelligence (“AI”) chatbot program, ChatGPT, in providing legal assistance to a user, Graciela Dela Torre (hereinafter referred to as “Dela Torre”), without licensure. As Dela Torre’s legal assistant and advisor, OPENAI intentionally induced and facilitated Dela Torre’s breach of a valid and enforceable settlement agreement with NIPPON by encouraging and assisting her in filing a motion to reopen a lawsuit that had been dismissed with prejudice.

Id. (emphasis added). Nippon claims that OpenAI aided and abetted abuse of the judicial process and that Nippon was forced to spend resources to relitigate settled claims.

Nippon sells group, employer-sponsored insurance plans. Compl., ¶3.  OpenAI develops and operates A.I. models, including ChatGPT. Id., ¶9.  It is alleged that “ChatGPT engages in the practice of law by providing users with legal analysis, legal advice, legal research, and produces drafted legal documents.” Id., ¶13.

Skipping over the allegations of law, the factual allegations follow.

It is alleged that ChatGPT is an A.I. application that is a large language model (“LLM”).  As such, it generates “human-like text responses….” Compl., ¶24.  Users can create a free or paid account. Id., ¶¶25-26.

When a prompt is entered, it is transmitted to OpenAI’s servers where it is processed by the LLM. Compl., ¶27. Conversations may encompass one chat session. Id., ¶28.

ChatGPT operates within defined technical, operational, and policy-based limitations, articulated by its Model Spec, programmed by OPENAI. This programming governs how the system functions and what types of responses it may provide. Based on OPENAI’s programming parameters, certain topics, requests, or uses may be restricted or declined to comply with applicable laws, safety requirements, and usage policies.

Id., ¶29 (emphasis added).

OpenAI has “multiple layers of surveillance systems” that can “detect and prevent harmful or policy-violating content,” as well as other tools. Compl., ¶30.  Further: “Human reviewers evaluate model outputs for factors such as factual accuracy and compliance with content policies.”  Id.

Nippon alleges that: “ChatGPT was intentionally designed with available features allowing users to acquire legal assistance including legal research, legal analysis, legal advice and draft legal documents.” Compl., ¶32.

It also asserts that: “ChatGPT is not an attorney. Although it was able to pass the Uniform Bar Examination with a combined score of 297, it has not been admitted to practice law in the State of Illinois or in any other jurisdiction within the United States.”  Compl., ¶33.

The Complaint next alleges that:

• ChatGPT has created hallucinated cases, Compl., ¶36.
• ChatGPT drafts and promulgates legal documents, such as pleadings, Comp., ¶37.
• ChatGPT conducts legal research, Compl., ¶37.
• OpenAI through ChatGPT “drafts legal papers, conducts legal research, provides legal analysis, and gives legal advice without a license to practice law,” Compl., ¶40.

The Complaint states that OpenAI’s terms of usage have, since October 29, 2025, prohibited the use of ChatGPT for “tailored legal advice.” Compl., ¶41.  Prior to that date, there was no such prohibition. Id.

Ms. Dela Torre was a member participant in an insurance policy issued by Nippon to her employer. Compl., ¶42. She submitted a claim. It was approved and subsequently benefits were terminated.  Id., ¶¶42-43.  She sued Nippon and the parties settled. Id., ¶¶44-45.  Nippon made a payment and Ms. Dela Torre agreed to a general release of all claims. Id., ¶45.

Roughly a year later, Ms. Dela Torre wrote to her attorney that “the terms of the settlement Agreement resulted from potential errors or omissions of important facts and documentation. Dela Torre further expressed her desire to challenge or reopen the settlement due to those perceived errors and omissions.”  Her attorney disagreed and wrote back refuting the analysis. Id., ¶¶48-49.

Ms. Dela Torre “uploaded [her attorney’s] response to ChatGPT and asked whether she was being gaslighted.” Compl., ¶50.  Nippon alleges:

ChatGPT analyzed the response and determined that [her attorney’s] response invalidated Dela Torre’s feelings, dismissed her perspective, and deflected responsibility for her dissatisfaction. ChatGPT ultimately concluded that the tactics used in [her attorney’s] response constituted gaslighting and were aimed at emotionally manipulating Dela Torre.

Compl., ¶50.

Ms. Dela Torre then fired her previous attorney and allegedly “attempted to vacate the Agreement and reopen the lawsuit herself by using ChatGPT.”  Compl., ¶51.  She viewed ChatGPT as a tool to assist pro se litigants and used it to obtain legal assistance. Id., ¶¶52-53. She asked for advice on how to vacate the settlement agreement and to reopen her lawsuit. Id., ¶54. ChatGPT generated proposed legal arguments to re-open the lawsuit. Id., ¶55.  “ChatGPT also formulated an introduction, a statement of facts and a request for relief which were then promulgated into a single draft motion.”  Id., ¶56.

Ms. Dela Torre then filed a motion to reopen the settled lawsuit. Compl., ¶58. It is alleged that this filing breached the settlement agreement and that it was induced by ChatGPT. Id., ¶59.T

Ms. Dela Torre’s motion was denied. Compl., ¶61.  It is asserted that she conceded that the settlement agreement was enforceable. Id., ¶62.

Ms. Dela Torre then initiated a new lawsuit against Davies Life and Health. Nippon was not a party to the new lawsuit. Compl., ¶63.  The original Complaint was allegedly drafted by ChatGPT.

Ms. Dela Torre then allegedly used ChapGPT to amend the new lawsuit and add Nippon as a party. Compl., ¶64.  It is alleged that “[a]s of the date of this Complaint, DELA TORRE has filed 44 motions, memorandums, demands, petitions and requests” in the second lawsuit, as well as other papers. Id., ¶¶66-67.  It is alleged that all were drafted with the assistance of ChatGPT.

Nippon alleges further filings and actions, including citation to cases that do not support the cited principles. Compl., ¶¶70-73, 76, passim.  It claims, in short, that: “Dela Torre has demonstrated a consistent use of ChatGPT throughout both her lawsuits against NIPPON, using it as a means to provide her with legal advice, legal research and legal papers prepared for the purpose of filing with the Court.” Id., ¶77.

Nippon makes a number of allegations about Ms. Dela Torre’s motivations that are not related to this blog’s topics.  Further, it alleges in detail a number of specific filings that it contends were not proper.  E.g., Compl., ¶¶88-89, 95, passim. They include naming Nippon in the second lawsuit to assert claims that Nippon asserts were released. Id., ¶91, passim.

After alleging wrongs too numerous to summarize here, the Complaint returns to ChatGPT, asserting:

As a lay person with no legal experience who purportedly suffers from physical ailments to her hands and elbows, Dela Torre would not have been able to prosecute her misconduct and file at the same volume and frequency but for the legal assistance provided by OPENAI through its ChatGPT application. Dela Torre would not have been able to sustain her campaign of retaliation and harassment against NIPPON but for ChatGPT’s ability to prepare and draft legal papers for submission to the Court.

Compl., ¶105 (emphasis added).  Nippon alleges that OpenAI was engaged in the unlicensed practice of law, and that Ms. Dela Torre’s alleged “abuse of the legal system” was “aided and abetted” by OpenAI.

Nippon claims:

OPENAI designed ChatGPT to provide legal services and, at all times relevant to this lawsuit, was aware that the program was being used to provide legal assistance to users. Yet OPENAI did not amend its Model Spec or its terms of use to prohibit ChatGPT from providing legal assistance until October 29, 2025. Its failure to modify either the Model Spec or terms of use, despite knowledge that the program was being used to provide legal services, demonstrates OPENAI’s complicity in ChatGPT’s unlicensed provision of legal assistance.

Compl., ¶109 (emphasis added).  Nippon claims that OpenAI assisted Ms. Dela Torres in “the drafting and preparation of her frivolous motions and requests for judicial notice against NIPPON.” Id., ¶119.

And, Nippon claims that: “OPENAI, through its AI chatbot program ChatGPT, provides legal advice, legal analysis, legal research and can draft legal documents and papers for submission to a Court. ChatGPT provides these legal services to any user who requests them.”  Compl., ¶123.

Nippon seeks to enjoin OpenAI from providing “legal assistance” to Ms. Dela Torre and from allegedly engaging in the practice of law in Illinois, plus compensatory damages of $300,000 and punitive damages of $10 million, with attorneys’ fees and costs.

However, the court added that, if defense counsel used the State-court documents in the federal case, they would be deemed to have possession, custody, and control in the federal case.

An open question is whether the plaintiff should or could serve a subpoena on defense counsel in the federal lawsuit to obtain production of that information. Another question is whether the holding comports with Fed.R.Civ.P. 1’s goal of the “just, speedy, and inexpensive” resolution of lawsuits.

I have posed the question Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022).  Generally, courts can choose between three standards: 1) the “legal right standard”; 2) the “legal right plus notification standard”; and, 3) the “practical ability standard.” The Sedona Conference’s comprehensive “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control,’” 17 Sedona Conf. J. 467, 492 (2016), states that courts often apply more than one standard and, as noted in the blog, the standards often blur.

L.S. sued for injuries sustained in a fire.  The State-court action was against the State of Washington and a State agency, the Department of Children, Youth, and Families (“DCYF”). The federal lawsuit was against five DCYF employees; however, DCYF was not named.[1]

Both lawsuits involved similar facts.  Plaintiff was represented by the same attorneys in both suits.  The defendants were represented by the same attorneys in both suits. The court wrote: “DCYF and Defendants thus share the same counsel, despite being distinct entities and mounting separate defenses against Plaintiff in two separate lawsuits.”

Plaintiff served discovery in both lawsuits.

In the State lawsuit, “DCYF produced over 30,000 pages of records in response.” Those documents were in the possession of defense counsel, who were also counsel for the DCYF employee defendants in the federal lawsuit.

However, in the federal suit, the DCYF employees responded that 51 of 60 RFP’s “request records that belong to DCYF, and that do not belong to any of the individual Defendants.”  They “contend that although some of them may have ‘access’ to the requested records, none of them ‘have personal possession, custody, or control of any documents, electronically stored information, or tangible things possessed by DCYF, nor does any one of them have the legal right to obtain such material upon demand.’”[2]

Plaintiff, L.S., responded that the defense attorneys had them in the federal lawsuit.  They had, after all, produced them in State court.  Therefore, L.S. argued, the documents were in the “possession, custody, or control” of the DCYF employees, because they were in the possession of their agents.

The L.S. court applied the “legal control” test, writing that “possession, custody, or control” means “actual possession, custody, or control.” It wrote that courts “routinely reject” the practical ability test.

Then, the L.S. court turned to the issue of possession by defense counsel, writing:

As for documents held by attorneys, federal courts have consistently held that responsive documents held by an attorney are within the responding party’s control if the client has the legal right to obtain such documents on demand….  But these cases do not hold that a client has a right to demand any document held by their attorney. Rather, they indicate that a client’s right to demand materials from their attorney, and therefore the scope of discoverable information, is limited to documents that are “gathered or created by [a client’s] attorneys pursuant to their representation of that client.”[emphasis added; citation omitted].

The court then applied the “legal control” test:

Here, the Court does not find that Plaintiff has met its burden of showing that Defendants have actual or legal control over the documents in question. Although Plaintiff states that Defendants’ attorneys have “collected these very documents” and are using them “to build their case,” he provides no evidence to support this assertion…. Plaintiff also fails to explain why the Court should conclude that Defendants’ attorneys collected these documents and are using them in this case, as opposed to merely possessing the documents due to their involvement with another case involving Plaintiff…. In contrast, Defendants attest that “[t]he documents Plaintiff seeks were not gathered or created by Defendants’ attorneys pursuant to their representation of Defendants; they were gathered pursuant to counsel’s representation of DCYF and shared with Defendants with DCYF’s consent.”  Based on the present record, the Court does not find that all DCYF records held by Defendants’ attorneys are within Defendants’ “possession, custody, or control” under Rule 34. It thus declines to compel Defendants to produce these records at this time. [emphasis added].

The L.S. court did not comment on any import of that “consent” to “sharing,” but added:

That said, the Court also acknowledges that Defendants and DCYF are represented by the same attorneys. It thus acknowledges the practical reality that Defendants’ attorneys may be able to access and consult DCYF’s records in support of Defendants’ representation in this action, despite having initially received the documents in connection with their separate representation of DCYF in the state court case. If this were to occur, either now or in the future, the Court would view such documents as collected by Defendants’ attorneys pursuant to their representation of Defendants, thereby bringing the DCYF records within the permissible scope of discovery. In such a situation, Defendants would need to produce the documents and could face sanctions for failing to disclose possession of the records or for withholding them absent a proper assertion of privilege. [emphasis added].

In my view, this is a statement that, if the “practical ability” test applied, the defense attorneys’ possession would suffice as “possession, custody, or control” because the L.S. court wrote that  “Defendants’ attorneys may be able to access and consult DCYF’s records in support of Defendants’ representation in this action….”  Further, that may have already happened because the records were “shared with Defendants with DCYF’s consent.”

Fed.R.Civ.P. 1 calls for the “just, speedy, and inexpensive” resolution of every action.  This holding, in my opinion, does not facilitate that goal.

Should L.S. serve a subpoena on defense counsel and then assert they must produce the records?

If there was a clear answer to which of the three tests of “possession, custody, or control” was best, it would have been reached now.  The District of Maryland follows the “practical ability” test. The “Practical Ability” Standard for “Control” in Maryland (Dec. 11, 2020). It has been argued that the other tests “gut” Fed.R.Civ.P. 34.  Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024).

Sometimes, the answer is contractual. Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025).

However, uniform resolution of this issue is important. Possession, Custody, or Control – Part II (Oct. 27, 2023)(discussing issue in the context of corporate legal separateness); Possession, Custody, or Control of Responsive Information by States Suing Meta (Sep. 12, 2024).

The Sedona Conference has written that the differing approaches “lead to a lack of clarity for lawyers and litigants that must manage discovery or advise clients…. This is especially problematic given that in today’s digital world, borders have broken down and many businesses and individuals live their lives and conduct business nationwide.”  17 Sedona Conf. J. at 482–83 (emphasis added).

It is time for a national standard.

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

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[1] Presumably, two suits were filed due to the 11^th Amendment and State tort claim laws.

[2] Further, while not completely clear, it appears that the defendant employees argued that “Plaintiff’s requests are ‘unreasonably cumulative and duplicative,’ as Plaintiff already has access to the documents he seeks….” Id. at n. 7. The court did not address this issue. Id.