Objections – E-Discovery LLC https://www.ediscoveryllc.com Mediation of E-Discovery Disputes Sat, 31 Oct 2026 18:49:59 +0000 en-US hourly 1 “Contention Interrogatories” Asking for “All” Facts Were Too Broad https://www.ediscoveryllc.com/contention-interrogatories-asking-for-all-facts-were-too-broad/ Thu, 22 Oct 2026 08:32:09 +0000 https://www.ediscoveryllc.com/?p=5681 […]]]> Contention interrogatories ask an opponent to state the facts on which it relies to support a specific contention.  Fed.R.Civ.P. 33(a)(2) as amended in 1970 states: “An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.” [emphasis added].

Frequently, the issue is when it is appropriate to propound these interrogatories and when they need to be answered. See Timing of Propounding and Responding to “Contention Interrogatories” (Oct. 8, 2026).

However, in Rain Drop Foundation, Inc. v. State Farm Fire and Casualty Co., 2026 WL 2936810 (W.D. Ok. Sep. 30, 2026), the court addressed the scope of this useful discovery device.  It quoted two contention interrogatories:

Interrogatory No. 14 provides: “If State Farm maintains Plaintiffs failed to comply with the terms of the Policy, please set forth (a) all facts in support thereof; (b) all Persons with supporting knowledge; and (c) all documents and other evidence that may support such contention.” Interrogatory No. 15 states “[i]f State Farm contends Plaintiff failed to mitigate their damages, please set forth (a) the facts that support each contention; (b) all persons with knowledge to support such contention; and (c) all documents and other evidence that may support such contention.”

Id. at *4 (emphasis added).

The Rain Drop Foundation court defined “contention” interrogatories, writing:

Contention interrogatories are interrogatories that seek to clarify the basis for or the scope of an adversary’s claims…. These interrogatories ask another party to indicate what it contends, to state all the facts on which it bases its contentions, to state all evidence on which it bases its contentions, or to explain how the law applies to the facts.

Id. at *5 (cleaned up).

The Rain Drop Foundation court found them to be generally permissible: “Other judges in this district and elsewhere have recognized that certain contention interrogatories are generally viewed as a perfectly permissible form of discovery.” Id. (cleaned up).

However, the Rain Drop Foundation court recognized a limitation: “But contention interrogatories seeking ‘all facts’ supporting allegations of a claim or defense are overly broad and unduly burdensome.”  Id. at * 5 (cleaned up; emphasis added).  It concluded: “The Court finds Interrogatory Nos. 14-15 are the type of contention interrogatories that are overly broad and unduly burdensome, as they seek an exhaustive rendition of facts and supporting evidence at this stage of the case.”  Id.

For related issues, please visit:

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Three More A.I. Protective Orders https://www.ediscoveryllc.com/three-more-a-i-protective-orders/ Fri, 09 Oct 2026 08:30:52 +0000 https://www.ediscoveryllc.com/?p=5617 […]]]> I have written a series of posts suggesting that AI protective orders are becoming the standard of care.  See A.I. Protective Order by Consent in Google Case (Sep. 13, 2026).

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

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

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

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

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

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

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

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

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

Id. at *5.

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

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

a.  “AI tool” means any automated system that uses machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.

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

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

Some prior posts are:

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE:

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

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

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

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

a. “AI tool” means any automated system that uses machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.

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

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

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

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

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

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

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

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

16. The obligations and restrictions of this section apply even where the data or the protected material has been anonymized. “AI tool” means any automated system that uses statistical modeling, machine learning, or similar techniques to process inputs and generate outputs, recommendations, or predictions, including but not limited to large language models, generative AI services, or AI-assisted software tools, whether cloud-based or otherwise.

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

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

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

U.S.A. v. DeJesus, 2026 WL 3034296 (S.D.N.Y. Oct. 9, 2026)(by consent).

]]> Expert’s Use of GenAI Was Proper on Facts Presented https://www.ediscoveryllc.com/experts-use-of-genai-was-proper-on-facts-presented/ Thu, 08 Oct 2026 19:33:11 +0000 https://www.ediscoveryllc.com/?p=5620 […]]]> Ferlito v. Harbor Freight Tools USA, Inc., 2025 WL 1181699 (E.D.N.Y. Apr. 23, 2025), isn’t  the most recent decision concerning an expert’s use of GenAI, but it is an interesting one.

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

The decision begins:

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

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

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

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

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

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

The Ferlito court explained:

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

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

A: Correct.

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

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

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

A.  Correct.

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

A.  Yes. [emphasis added].

Later testimony was:

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

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

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

A.  Free service.

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

A.  No.

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

A.  No.

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

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

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

A.  That’s correct.

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

A.  No, I haven’t.

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

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

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

Judge Forrest wrote:

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

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

]]> Timing of Propounding and Responding to “Contention Interrogatories” https://www.ediscoveryllc.com/timing-of-propounding-and-responding-to-contention-interrogatories/ Thu, 08 Oct 2026 16:50:04 +0000 https://www.ediscoveryllc.com/?p=5612 […]]]> A “contention interrogatory” is in the form of “state the facts on which you rely to support your contention that xyz.” They can be very useful.  On the other hand, it may be difficult to respond to them before the answering party has had substantial discovery.

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

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

The United Assoc. National Pension Fund court wrote:

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

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

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

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

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Should There Be an “A.I. Exception” to Liberal Construction of Pro Se Pleadings? https://www.ediscoveryllc.com/should-there-be-an-a-i-exception-to-liberal-construction-of-pro-se-pleadings/ Sat, 26 Sep 2026 08:57:12 +0000 https://www.ediscoveryllc.com/?p=5596 […]]]> Pro se pleadings are entitled to liberal construction.  One court has repeatedly suggested, but not held, that the liberal construction rule should be revisited in the age of A.I.  Hickam v. Chesterfield Co. School Bd., 2026 WL 2861611 (E.D. Va. Sep. 23, 2026)(Young, J.).  Litigants opposing a pro se Complaint that appears to have been prepared with GenAI, may wish to consider Judge Young’s suggestion.

To the same effect, see Almudhafer v. Spotsylvania Cnty. Pub. Schs., 2026 WL 49654, at n. 2 (E.D. Va. Jan. 7, 2026)(Young, J.); Almudhafer v. Spotsylvania Volunteer Rescue Squad, 2026 WL 49652, at n. 3 (E.D. Va. Jan. 7, 2026)(Young, J.).  Another decision states:

The Court respectfully proposes that the time may be near for an exception to the Erickson liberal-construction rule, where a pro se individual relies on AI to draft pleadings and thus blurs the line between what is a good faith pro se assertion of an actionable claim and what is a computer-generated morass that only serves to waste court time and resources.

Mitchel v. Stellantis Fin. Servs., Inc., 2025 WL 2676569, at n. 6 (E.D. Va. Sept. 18, 2025)(Young, J.).

In Hickam, among other things, the unrepresented plaintiff made a “Motion for Leave to File Second Amended Complaint…, which is accompanied by a 121-page proposed Second Amended Complaint.”

The court wrote: “Based on the Court’s inherent power to manage its docket, and mindful of the requirements set forth in the Federal Rules of Civil Procedure to which all parties, including those proceeding pro se, are bound, the Court will sua sponte dismiss without prejudice Plaintiff’s First Amended Complaint for failure to comply with Federal Rule of Civil Procedure 8. Furthermore, the Court will deny without prejudice Plaintiff’s Motion for Leave to File Second Amended Complaint and direct Plaintiff, should he desire to continue this matter, to submit a proposed Second Amended Complaint that complies with Federal Rule of Civil Procedure 8.”

In part, the court explained that “to determine the viability of Plaintiff’s claims, the Court would have to engage in the improper task of sifting through 416 paragraphs to piece together a cogent timeline of events in order for the Court to assess how each of Plaintiff’s claims relates to each of the Defendants.”

The Hickam court recognized that a pro se complaint is “to be liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers,” citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).

In a footnote, the court added:

The Court notes that Erickson’s liberal-construction requirement for pro se pleadings predates the advent of artificial intelligence (“AI”) drafting tools, which are being used with increasing prevalence by pro se parties in particular.…  Such tools both increase pro se litigants’ ability to draft voluminous pleadings and increase the odds that such pleadings contain fractured assertions and “hallucinated” legal propositions, which courts must wade through in construing claims…. While its analysis does not ultimately turn on this point, the Court notes that several of Plaintiff’s filings appear to carry the hallmarks of AI drafting assistance beyond that to which Plaintiff certifies. [emphasis added].

In the Spotsylvania Volunteer Rescue Squad decision, the court added: “[I]t respectfully proposes that the time may be near for an exception to the Erickson liberal-construction rule, where a pro se individual relies on AI to draft pleadings and thus blurs the line between what is a good faith pro se assertion of an actionable claim and what is a computer generated morass that only serves to waste court time and resources.”  2026 WL 49652, at n. 3.

The liberal construction rule has been recently and frequently cited. For example: “When a party is pro se, the court will construe her submissions ‘liberally to raise the strongest arguments that they suggest.’” Shah v. Bhagat, 2026 WL 2859875, at *3 (S.D.N.Y. Sept. 23, 2026)’

It will be interesting to see if an A.I. exception to the rule of liberal construction begins to emerge.

This blog was initially posted on  Electronic Discovery Reference Model.

]]> No Violation of A.I. Protective Order https://www.ediscoveryllc.com/no-violation-of-a-i-protective-order/ Fri, 11 Sep 2026 20:30:43 +0000 https://www.ediscoveryllc.com/?p=5519 […]]]> Courts are routinely granting A.I. protective orders by consent.  U.S. v. Paula, 2026 WL 2665024, at *2 (S.D.N.Y.  Sep. 10, 2026).

In Elgin v. Wells Fargo Bank, N.A., 2026 WL 2664674, at *1 (N.D. Cal. Sep. 9, 2026), Wells Fargo asserted that Plaintiff violated such a protective order.  “Specifically, Wells Fargo contends that Plaintiff violated the stipulated protective order by uploading Wells Fargo’s discovery requests into an AI tool and then responding to those rewritten requests rather than the requests propounded.”  Id.  Two weeks later, Plaintiff served corrected responses.

The court wrote:

In opposition, Plaintiff clarifies that the stipulated protective order was not violated, because the material uploaded into the closed AI tool was not confidential and AI was not used to respond to the rewritten requests. Moreover, Plaintiff explains that Wells Fargo did not produce any documents marked “Confidential” until one week after the errant responses were served.…. Plaintiff’s points are well taken. Since Plaintiff provided corrected responses to all of the discovery devices within two weeks of the errant responses, and Plaintiff did not violate the stipulated protective order, the Court declines to find that Plaintiff waived all objections to the respective discovery devices or find that the requests for admission must be admitted.

Id. at *1 (emphasis added).

The court added: “Furthermore, the parties are advised that the Court has limited, judicial resources and does not appreciate unnecessary motion practice. Plaintiff served the corrected responses to all three discovery devices prior to the parties’ completion of the meet and confer process, which should have resolved this dispute informally. This is particularly true given the extreme relief sought by Wells Fargo. The Court trusts that, going forward, the parties will be more judicious in deciding which disputes require court intervention.”

For more information on AI Protective Orders, please visit:

 

]]> Asking When Untimely Discovery Responses Will Be Provided Doesn’t Consent to an Extension https://www.ediscoveryllc.com/asking-when-untimely-discovery-responses-will-be-provided-doesnt-consent-to-an-extension/ Wed, 09 Sep 2026 08:47:25 +0000 https://www.ediscoveryllc.com/?p=5511 […]]]> Dochee v. The Methodist Hospitals, Inc., 2026 WL 2517676 (N.D. In. Aug. 26, 2026), resolved a number of discovery disputes.

Plaintiff argued that many of Defendants’ discovery responses were untimely and requested that the court deem all objections to have been waived. Responses were between six weeks to two months late.

The court wrote:

Under Federal Rule of Civil Procedure 33(b)(4), “[a]ny ground not stated in a timely objection [to an interrogatory] is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4)…. Case law imposes similar consequences for a party’s failure to timely object to document requests…. It is firmly established in this Circuit that a party who fails to timely respond to discovery requests waives his objections thereto. [cleaned up].

Defendants argued “that they responded to the best of their ability to the voluminous requests and interrogatories.”

They also asserted that “they were in communication with Plaintiff during the course of discovery and that Plaintiff was aware that Defendants were working on responses and answers to the voluminous discovery.”

Plaintiffs responded “that just because counsel requested information about when late responses would be provided, it does not mean that she consented or acquiesced to an extension of any kind.” [emphasis added].

The court agreed: “The Court views Defendants’ failure to move for an extension of time or timely provide responses and objections with disfavor.”  [emphasis added]. Not only had Defendants failed to file a motion, but they did not “even explicitly ask Plaintiff” for an extension.

However, because Defendants had now responded, the court did not strike their responses or deem the objections waived.

The court addressed many other issues. For example:  “The Court notes that Defendant Methodist objected on the basis of relevance in addition to objecting on the basis of privilege to many of the referenced requests. Defendant Methodist need not provide a privilege log for the requests where it objected on grounds besides just privilege, but does need to provide a privilege log for” the others.  Cf. Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sept. 6, 2025).

This blog was initially posted on  Electronic Discovery Reference Model.

]]> Another Dispute over A.I. Protective Order https://www.ediscoveryllc.com/another-dispute-over-a-i-protective-order/ Sun, 06 Sep 2026 08:50:11 +0000 https://www.ediscoveryllc.com/?p=5499 […]]]> In U.S. v. Thomas, 2026 WL 2517653 (S.D.N.Y.  Aug. 26, 2026), defense counsel wrote to the court asking for an order compelling discovery. Counsel wrote:

Th[e] hold-up in discovery production centers around the parties disagreement regarding the language in a provision in the proposed Protective Order (“PO”) concerning defense counsel’s use of Artificial Intelligence (AI) platforms in its review of discovery provided by the Government. The parties have been engaging in good faith negotiations for over a month regarding the appropriate language to be included in the PO and whether the AI obligations set forth in that provision limits defense counsel, the coordinating discovery attorney (“CDA”), and the Government. Proposals have been sent back and forth, the latest of which was provided to the Government on August 19, 2026, and was based on discussions between the Government, defense counsel and Emma Greenwood, Esq., who is appointed as the CDA in this case.

The Government is holding hostage the discovery until defense counsel executes the PO. We seem to be at an impasse. However, even though all parties are acting in good faith, the Government’s refusal to even release the discovery that is otherwise not covered by the PO is unacceptable. I am well aware of my ethical obligations on the use of AI in handling my client’s documents whether those documents are discovery or something other. The Government does not have a role in policing or overseeing or even dictating with my ethical obligations. Similarly, I trust the Government is familiar with their ethical obligation with respect to the use of AI as it relates to my client’s discovery.

Accordingly, while I remain optimistic that counsel and the Government will reach an agreement on the language of an AI provision in the PO, until such time as we do, I respectfully request the Court compel the Government to at least provide the defense with all non-sensitive Rule 16 discovery immediately. [emphasis added].

The court denied the request, writing:

The Government’s proposed protective order characterizes all discovery materials as “disclosure materials” and subjects all discovery material (whether it is designated for further restrictions as “attorneys eyes only” or “attorney’s possession only” or not) to restrictions on, inter alia, further disclosure and use other than for purposes of the defense of the charges, as well as the AI-specific restrictions of which defense counsel complains. (Docket entry no. 29-1.) In short, based on the Government’s broad definition and description of “disclosure materials,” there does not appear to be any “non-sensitive Rule 16 discovery” that the Government would be prepared to produce without restrictions on use and further dissemination.

The court also denied a request to enter the government’s protective order, writing: “The parties and the Coordinating Discovery Attorney are encouraged to continue to meet and confer to clarify the Government’s position as to whether there is any discovery material that is not within any of the categories described in the final sentence of paragraph 1 of its proposed order, and to clarify the defense’s position as to whether it believes its ethical obligations already preclude its use of AI tools that would subject the discovery material to disclosure and/or use that is incompatible with the general restrictive principles that are outlined in paragraph 5 of the proposed protective order.”

This case is in the Southern District of New York.  For a post citing orders entered by consent in criminal cases in the Southern District of New York, see Another A.I. Protective Order – Part 10 (Aug. 21, 2026).

For a recent post on this issue in a civil case, see A.I. Protective Orders Are Becoming Routine (Aug. 27 ,2026).

For more on this topic, please visit:

 

]]> Phil Favro Discusses Deepfakes and Authentication https://www.ediscoveryllc.com/phil-favro-discusses-deepfakes-and-authentication/ Thu, 03 Sep 2026 09:00:37 +0000 https://www.ediscoveryllc.com/?p=5485 […]]]> Phil Favro has posted New Court Case Exemplifies Evidentiary Challenges with Deepfakes (Aug. 13, 2026), discussing both sides of authentication of evidence challenged as a deepfake. Phil uses the majority and dissenting opinions in U.S. v. Belt, 181 F.4th 931 (8th Cir. 2026), as an example.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

____

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

]]> There is No “Tit for Tat” Defense to a Discovery Request https://www.ediscoveryllc.com/there-is-no-tit-for-tat-defense-to-a-discovery-request/ Wed, 02 Sep 2026 09:09:59 +0000 https://www.ediscoveryllc.com/?p=5453 […]]]> In Middien v. Gillgan, 2026 WL 2456336 (C.D. Cal. Aug. 4, 2026), the court wrote:

An assertion in opposition to a motion to compel that the moving party has been remiss in fulfilling the moving party’s discovery obligations presents a non sequitur. See, e.g., Harrison v. Comm’r Gary Lanigan, 2016 WL 3626524, at *2 (D. N.J. July 1, 2016) (“there is no place for ‘tit-for-tat’ in a court of law. One party’s failure to comply with certain rules and procedures is not an excuse for another party to do the same”); Genentech, Inc. v. Trustees of University of Pennsylvania, 2011 WL 7074208, at *1 (N.D. Cal. June 10, 2011) (“A party may not excuse its failure to comply with discovery obligations by claiming that its opposing party is similarly delinquent. Nor may a party condition its compliance with discovery obligations on receiving discovery from its opponent.”) (citations and quotations omitted). [emphasis added].

I wrote about a similar holding in the lawsuit involving Ms. Blake Lively, Mr. Justin Baldoni, and others.  Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us” (Aug. 30, 2025).

It is established that Defendant Can’t Insist on an “I Go First” Deposition (Mar. 23, 2023) (quoting Fed.R.Civ.P. 26(d)(3): “Unless the parties stipulate or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery.”

In a similar context, one court wrote:

“Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that [t]he parties should not simultaneously be in production while still negotiating their ESI protocols.’ That is an argument for the parties to reach prompt agreement as to an ESI protocol, not for delaying production.”

Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production (Apr. 26, 2026).

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