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“Colorado policy could shield AI from complaints regarding unauthorized practice of law”
A new Colorado policy could limit enforcement of unauthorized practice of law claims against AI tools, even as litigation against OpenAI alleges such tools engage in UPL.
When Should a Motion for Sanctions be Filed?
Harris v. Washington County, 2026 WL 813917 (D. Utah Mar. 24, 2026), highlights a recurring procedural problem in federal discovery practice: the Federal Rules do not set a clear deadline for filing sanctions motions. In...
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.
Well-Reasoned “Hallucination” Analysis
A federal court decision in Brownfield v. Cherokee Co. School Dist. clarifies that failing to verify AI-generated citations can trigger Rule 11 sanctions, even for pro se litigants.
Plaintiff Sold Her Cell Phone After Litigation Commenced
In Hernandez v. DiBiaso (N.D. Ill. Mar. 9, 2026), the court held that selling a cell phone after litigation began violated preservation duties under Rule 37(e). Although the loss of ESI caused prejudice, the court...
Example of a Proper Use of GenAI
A 2026 Eleventh Circuit ruling provides a clear, verifiable example of proper generative AI use in litigation, where an acknowledged AI-generated diagram supported factual analysis.
December 2025 Privilege Protection Amendments to Fed.R.Civ.P. 16 and 26
Amendments effective December 1, 2025 to Federal Rules of Civil Procedure 16 and 26 emphasize early planning for privilege claims, encourage Rule 502 non-waiver orders, and highlight flexible approaches to privilege logging. The changes push...
The Purpose of an ESI Protocol
A federal court reminds litigants that disagreement over an ESI protocol does not equal an impasse. Parties must meaningfully meet and confer before seeking judicial intervention.
“The Fire and BPA’s Preservation of Evidence”
An Oregon federal court imposed adverse inference sanctions against BPA for willful spoliation of physical evidence and ESI following the 2020 Holiday Farm Fire. The decision analyzes when the duty to preserve is triggered and...
Two Courts, Two Answers: When Does Using AI Waive Privilege?
Mike Berman explores a post by Jennifer Ellis, JD, LLC. discussing Heppner, the case that says clients using AI, not at the direction of counsel, cannot withhold those documents or that ESI as privileged.
A.I. Privilege, Heppner, and How Did the Court Learn About the Absence of Certain Attorney-Client Communications Between Mr. Heppner and His Attorneys?
In U.S. v. Heppner, Judge Rakoff held that AI-generated documents were neither privileged nor work product. This article examines the court’s reliance on ECF 23-5 and the absence of attorney direction in shaping that outcome.
A “Practical Control” Decision Rejects the “Legal Right” Standard
The Eastern District of Pennsylvania applied the practical ability test for possession, custody, or control under Rule 34, holding that former employees could be compelled to produce a report they had the practical ability to...