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Dispute over A.I. Protective Order
In U.S. v. Thomas, defense counsel and the Government disputed proposed protective-order restrictions governing the use of AI in discovery. The court declined both to compel production of purportedly non-sensitive Rule 16 discovery and to...
There is No “Tit for Tat” Defense to a Discovery Request
Michael D. Berman examines Middien v. Gillgan, where the court rejected a “tit-for-tat” approach to discovery, explaining that one party’s alleged discovery failures do not excuse another party’s noncompliance. Berman connects the ruling to decisions...
ESI Protocol Held Not to Apply to Non-Party
Michael D. Berman reviews Burge v. Teva Pharmaceuticals Industries, Ltd., where the court found that the parties’ ESI Protocol did not apply to non-party Goodwin and ordered in camera review of redacted emails.
Use of an A.I. Recorder in Depositions? In a “Meet and Confer”?
In Greco v. Hon. Robert W. Lane, a Nevada federal court found no procedural defect in a request to use an AI voice recorder as a secondary deposition record, while leaving substantive concerns for another...
Phil Favro Discusses Deepfakes and Authentication
Michael Berman examines Phil Favro’s analysis of U.S. v. Belt and the growing challenges surrounding deepfake evidence authentication. The article highlights video provenance, native-file preservation, chain of custody, forensic examination, and established authentication methods for...
The Case of the Missing Lab Notebooks
In Terran Biosciences, Inc. v. Compass Pathfinder Limited, defendants sought sanctions over missing physical lab notebooks in a trade secrets dispute. The court found sanctions unwarranted because defendants failed to establish that the notebooks were...
A Brief Writing Lesson from the Court of Federal Claims
The Court of Federal Claims offered a pointed writing lesson in Scale AI, Inc. v. U.S.: the strongest briefs exercise restraint, focusing on the arguments most likely to prevail rather than taking a “scattershot” approach...
The First Amendment Privilege Against Discovery by the Government
Michael D. Berman examines a ruling addressing the First Amendment privilege against government discovery, including internal advocacy materials and the evidentiary showing required to establish a chilling effect on associational rights.
A Request for “Three-Strata Validation” Was Denied
A federal court addressed a proposed “three-strata validation” process for ESI discovery in In re Class Action Settlement Administration Litigation. The parties agreed to statistically valid sampling of documents coded nonresponsive, while the court rejected...
Use of Personal Email by Government Personnel
Government personnel who use personal email or devices for government business may expose those systems to discovery. A federal court ordered counsel-supervised searches of personal email and cell phone data in Washington v. Mass. Dept....
What Substantive Law Governs Sufficiency of a Privilege Log in a Federal Court Sitting in Diversity?
In McSwain v. HOMAG Machinery N. America, Inc., the court distinguished state substantive privilege law from the federal procedural rules governing the sufficiency of a privilege log.
“Court Sanction for Plaintiff’s Use of Prompt-Injection”
A Connecticut court sanctioned a self-represented litigant for repeatedly concealing AI prompt-injection instructions in court filings. In Elliott v. New York Bariatric Group, LLC, the court distinguished the familiar risk of unreliable AI output from...