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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...
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...
EEOC to Get a Fee Award for Defendants’ Discovery Failures
A federal court awarded the EEOC attorneys’ fees after repeated discovery failures by defendants, emphasizing Rule 26(g) certification duties, Rule 37 sanctions, and the importance of diligent ESI searches and timely production.
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.