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Court Refuses to Enter Fed.R.Evid. 502(d) & “Clawback” Order Without Agreement; Also Refuses to Order Production of Responsive Documents That Do Not “Hit” on Search Terms
In Medal v. Amazon, a federal court refused to enter a Rule 502(d) clawback order without party agreement and declined to require production of responsive documents not captured by search terms. Michael Berman respectfully disagrees...
Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production
In a recent case, the defendants opposed certain discovery. The court wrote: “Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that he parties should not simultaneously be in...
Cite Checking to Find Hallucinated Cases Deemed Insufficient
Recent decisions highlight that relying on cite-checking alone cannot cure hallucinated cases in AI-generated briefs, reinforcing lawyers’ duty of competence and verification.
No Right to a “Hit Report” for Facially Overbroad Search Terms?
A federal court rejected a blanket right to hit reports, holding they may be denied when search terms are facially overbroad and disproportionate.
Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney
A federal court ruled that a pro se litigant could not use ChatGPT during a deposition and that such use is not protected by attorney-client privilege, reinforcing limits on AI in litigation.
Request for Broad “Apex” Executive Discovery Replaced by Phased Discovery Order
A federal court rejects broad apex executive discovery requests, instead ordering phased ESI production that balances proportionality, cost, and relevance under Rule 26.
A.I. Protective Orders Are Becoming Routine
Courts are increasingly entering AI protective orders that restrict how parties use generative AI with discovery materials, highlighting growing concerns over confidentiality, privilege, clawbacks, and litigation risk.
It is Improper and a “Perilous Shortcut” to “Outsource” Discovery Positions to A.I.
In White v. Walmart, the court held that relying exclusively on AI for discovery disputes is improper, emphasizing attorneys’ duty to exercise independent judgment and confer in good faith.
Where Oh Where Did My Data Go? A Data Broker?
A federal court dismissed claims against Acxiom, but the case raises urgent questions about data brokers, profiling, and the limits of privacy law.
Inadvertent Production of Work Product Did Not Waive Protection; However, Recipient Showed Substantial Need and Overcame That Protection
In Aerosonic LLC v. Joby Aero, Inc., the court held that inadvertent disclosure of work product did not waive protection under Rule 502 and the ESI Protocol. However, the receiving party demonstrated substantial need and...
Court Suggests That Opposing Counsel Also Failed to Check Citations
A Seventh Circuit decision raises a critical question for modern litigation: do lawyers have a duty to identify hallucinated or false citations in opposing counsel’s filings? While stopping short of imposing sanctions, the court signaled...
Categorical Privilege Logs Are Not Disfavored
In Thompson v. Seattle Public Schools, the court reaffirmed that categorical privilege logs are not disfavored and may be used without prior court approval under Rule 26. The decision highlights proportionality, burden, and practical limits...