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Information Governance–Employee’s Use of Employer’s Email for Privileged Communications
Michael Berman analyzed Lalwani v. Trustees of Indiana University where an employee, plaintiff Mr. Lalwani, had communicated with his lawyers using the employer-defendant university’s email system that found Indiana University to be a public institution...
A.I. Protective Order—Again
Two recent Southern District of New York cases highlight a growing trend in discovery practice: protective orders that regulate how parties may use confidential discovery materials with AI tools. While not universal, these provisions increasingly...
Unicorn Rejects A.I. Protective/Confidentiality Order – Order Entered in Criminal Case
In Litton v. Roblox Corporation, the Northern District of California declined to modify its model protective order to address AI use, relying on existing standing-order provisions. Michael D. Berman contrasts that decision with a growing...
Motion for Reconsideration—It Does Not Exist—But It Is Routinely Entertained—On Limited Grounds
A Colorado federal court denied reconsideration in Stanisaveljevic v. The Standard Fire Ins. Co., finding that evidence already in a party’s possession but left unreviewed is not newly discovered. The opinion reinforces that discovery choices...
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...
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.
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.
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...
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...
Important A.I. Work Product and Protective Order Decision: Application to Pro Se Litigant and Beyond?
Can using AI in litigation stay protected, or does it risk exposing strategy? A new decision in Morgan v. V2X draws a careful line, protecting AI-assisted work product while placing real limits on how confidential...
Does Disclosure of Litigation Hold Directive to Preserve “Texts” Waive Privilege?
A recent decision examines whether identifying “texts” in a litigation hold waives privilege and what it takes to compel disclosure of hold notices.
Defensible by Design: What Legal Teams Must Get Right About AI Privilege Workflows
AI is now operational in privilege review, but defensibility remains the standard. Drawing on a Legalweek 2026 panel, this article explores validation protocols, the distinction between classification and logging, and the importance of Rule 502(d)...