2026 eDiscovery Guidance from 2025 Cases

1. Parties Should Preserve and Produce Discoverable AI Content

Case. In re OpenAI, Inc., Copyright Infringement Litig., No. 25-MD-3143 (SHS) (OTW), 2025 WL 3468036 (S.D.N.Y. Dec. 2, 2025).

Summary. In this decision involving the discovery of AI-related content, Magistrate Judge Ona Wang denied OpenAI’s request for reconsideration of her earlier production order and directed OpenAI to begin producing 20 million output logs. Those logs include (among other things) user prompts and AI outputs. OpenAI had argued that the logs were generally irrelevant and that their production was disproportionate to the needs of the case, given the production size and privacy considerations. Judge Wang rejected these arguments and ordered OpenAI to begin its production shortly after anonymizing output log user data. Judge Wang subsequently rejected a request that she stay her production order pending resolution by the district court of OpenAI’s objections to her production order. See In re OpenAI, Inc., Copyright Infringement Litig., No. 23-CV-11195, 2025 WL 3540399 (S.D.N.Y. Dec. 9, 2025).

Guidance for 2026. By now, litigants should be aware that their obligations to preserve and produce discoverable ESI could include AI content. While preservation and production obligations extend only to non-privileged AI materials that are relevant to the claims or defenses and proportional to the needs of the case, counsel should consider becoming aware of the sources of discoverable AI information that their clients generate and determine whether such information must be preserved and produced for litigation. The nature and extent of discoverable AI content will likely only proliferate, and parties and their counsel should be proactive in addressing this aspect of discovery.

2. Courts May Require Parties to Validate Their Productions

Case. In re Uber Techs., Inc., Passenger Sexual Assault Litig., No. 23-MD-03084-CRB (LJC), 2025 WL 1554332 (N.D. Cal. June 2, 2025).

Summary. In connection with its order requiring certain plaintiffs to produce social media account and posting information, the court established a validation process that allowed Uber to audit plaintiffs’ counsel’s evaluations of responsiveness. That process would permit Uber to review samples of plaintiffs’ social media activity, learn which documents were designated responsive, and negotiate with plaintiffs over documents where responsiveness was disputed. In implementing this protocol, the court acknowledged that traditional practice requires producing parties to determine which documents are relevant and responsive to discovery requests. Nevertheless, the court reasoned that the circumstances of this case—i.e., “the responsiveness of social media information may sometimes be a subjective question”—warranted transparent validation measures.

Guidance for 2026. Uber is another decision in which courts have ordered producing parties to disclose samples of both relevant and nonresponsive information as part of the validation process. While producing parties typically do not want to reveal nonresponsive documents to litigation adversaries, they may have to address transparent validation procedures, even if they do not accord with procedural rules (which only require the production of relevant documents) or traditional discovery practices (in which producing parties determine the relevance of their documents). Even though Uber (by the court’s own admission) does not represent traditional discovery practice, it highlights the importance of being proactive in handling validation. Questions about the completeness of productions are not going away anytime soon, particularly with the advent of artificial intelligence and its increasing use in the context of search and review of ESI.

3. Attorney-Client Privilege Safeguards Privileged ESI from Discovery

Case. In re FirstEnergy Corp., 154 F.4th 431 (6th Cir. 2025).

Summary. The Sixth Circuit Court of Appeals reversed a lower court order that would have forced a company (FirstEnergy) to disclose documents it created in connection with two internal investigations, and which FirstEnergy claimed were privileged. The Sixth Circuit found that FirstEnergy’s communications with its lawyers, which the company engaged to provide legal advice during the investigations, were privileged. In addition, the court determined that reports and papers that FirstEnergy’s counsel prepared in connection with the investigations were attorney work product and protected from discovery since they were prepared in anticipation of litigation. While the lower court indicated that FirstEnergy’s engagement of counsel was primarily for business purposes, the Sixth Circuit concluded otherwise, reasoning that the investigations were undertaken to address core legal issues arising from “high-stakes criminal and civil allegations” against the company.

Guidance for 2026. FirstEnergy spotlights the longstanding protection that courts provide for both attorney-client privileged communications and work product materials. While construed narrowly because they foreclose discovery of relevant evidence, courts typically uphold protections for privileged and work product materials both to ensure parties can obtain legal advice and to provide lawyers with a zone of privacy in which to prepare for litigation and trial. FirstEnergy reinforces these notions and, by extension, provides that litigants may safeguard their search and review processes from unwarranted intrusion during discovery.

4. Courts Uphold Properly Drafted Non-Waiver Orders

Case. Federal Trade Commission v. Amazon.com, Inc., No. 2:23-CV-01495-JHC, 2025 WL 2832474 (W.D. Wash. Sept. 16, 2025).

Summary. The plaintiffs moved to compel the production of certain documents that Amazon claimed were privileged and which Amazon sought to claw back pursuant to Federal Rule of Evidence 502(d) after conducting a “privilege re-review.” The plaintiffs argued that the re-review evinced Amazon’s intent to produce the documents, that pursuant to De Coster v. Amazon.com, Inc., No. 2:20-CV-00424-JHC, 2025 WL 1237370 (W.D. Wash. Apr. 29, 2025) Rule 502(d) did not apply, and that any privilege protection previously protecting the documents should be deemed waived. The court (District Judge John Chun) disagreed and instead found that the non-waiver order the court entered pursuant to Rule 502(d) both applied and allowed Amazon to claw back the documents at issue. Judge Chun, who issued the order in De Coster, distinguished that case from the instant non-waiver order, which explicitly revoked the application of Rule 502(b) by “plainly stating that the ‘provisions of Fed. R. Evid. 502(b) do not apply.’”

Guidance for 2026. Safeguarding privileged information has always been significant, but the task of doing so has never been more complex. This is particularly the case given the volumes of ESI that parties often must review and the challenge of identifying and then withholding privileged documents. While procedural safeguards can ameliorate the harm of inadvertently disclosing privileged ESI, those protections can be weakened if parties do not ensure they are properly prepared and implemented. The Amazon.com decision spotlights the importance of preparing non-waiver orders that clearly invoke the protections of Federal Rule of Evidence 502(d) while also renouncing the application of Rule 502(b).

5. Deciphering Possession, Custody, or Control Rules

Case. Allergan, Inc. v. Revance Therapeutics, Inc., No. 3:23-CV-00431, 2025 WL 984792 (M.D. Tenn. Mar. 17, 2025).

Summary. The special master denied the plaintiff’s motion to compel the defendant to search the personal devices of current or former employees for relevant documents. Regarding the question of whether the defendant had control over the requested information, the special master found that the plaintiff failed to show the defendant had a legal right to obtain data from its employees’ personal devices under its BYOD policy or employee handbook. The BYOD policy did not authorize the defendant to search its employees’ personal devices for any reason other than to ensure compliance with security policies. Moreover, it prohibited employees from conducting business on their personal devices except through email, which the defendant previously searched. Finally, the special master found that the defendant’s employee handbook did not establish control over employee personal devices, as it applied only to company-owned items.

Guidance for 2026. Allergan provides straightforward guidance on how enterprises can develop and implement policies that address whether they should be responsible for preserving and producing ESI for litigation. Despite Allergan’s holding and rationale, other courts have looked beyond policies to company practices (particularly regarding mobile device use) and applied possession, custody, or control rules accordingly. See Miramontes v. Peraton, Inc., No. 3:21-CV-3019-B, 2023 WL 3855603 (N.D. Tex. June 6, 2023) (finding the defendant company had control over its employee’s deleted text messages where the employee used his phone for company business). Decisions like Allergan and Miramontes emphasize the need for enterprises—particularly companies that are repeat litigants—to engage in careful planning, implementation, and training regarding information-related policies and practices.

Assisted by GAI and LLM technologies.

SOURCE: HaystackID