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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...
Privilege Waived Because Pre-Production Measures Were Not Shown to Be Reasonable
In Wilson Aerospace v. Boeing, the court found Rule 502(b) waiver when the producing party failed to demonstrate reasonable pre-production privilege screening and compliance with its clawback order.
Time of Production of Substantive and Impeachment Video vis-à-vis Date of Deposition
In Frankhouse v. Jobe, the District of Maryland addressed when video evidence must be produced in discovery, holding that a cell extraction video with predominantly substantive value must be produced before the plaintiff’s deposition.
Attorney’s Selection and Ordering of Non-Privileged Documents From a Large Document Set is Work Product—Printing the Universe is Not
In Aliev v. Trans Union, LLC, the court reaffirmed that an attorney’s selection and arrangement of documents may be work product but rejected privilege claims where counsel effectively “printed the universe” rather than selectively compiling...
“The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.”
In Jones Eagle LLC v. Ward, the court ordered “discovery on discovery” and demanded confirmation of a litigation hold after missing text messages and auto-delete settings raised Rule 37(e) concerns. The decision underscores that preservation...
Plaintiffs’ Failure to Timely Raise Lack of Defendant’s Privilege Log Defeats Waiver Claim
In Gurner v. American Family Mutual Ins. Co., the District of Nevada denied a motion to find privilege waiver based on an allegedly untimely privilege log. The court held that Rule 26 requires supplementation within...
Possession, Custody, or Control – Need for a Uniform National Standard – Part II
In L.S. v. Bolduan, the court applied the “legal right” test to deny Rule 34 control over documents held by shared defense counsel while signaling that use of those documents could trigger production. The decision...
The HSR Early-Warning System: How Filing Surges Amplify Cyber and eDiscovery Bottlenecks
January 2026 HSR filings may look flat year over year, but 2025 volatility tells a different story. Elevated late year volume signals mounting execution pressure for cyber diligence, governance, and eDiscovery teams, especially when Second...
ESI Protocol Disputes Were Resolved by Court
The court in In Re: GoodRX settled several ESI protocol disputes, rejecting automatic relevance of confidential documents and limiting redactions. It also enforced cooperation in discovery processes and ordered privilege logs for redacted materials.
The $1.5 Billion Reckoning: AI Copyright and the 2026 Regulatory Minefield
From a $1.5B lawsuit to global transparency laws, AI copyright liability has arrived. Enterprises must now prove training data provenance or face serious risk.
Lively v. Wayfarer Parties/Baldoni – Requests to Seal, Unseal, and a “Bottom-Line Order”
In its latest ruling, the Lively court rejected overbroad sealing requests, emphasizing public access and judicial accountability in discovery and summary judgment records.