Episode 181 - Is Your Remote Deponent Using An AI Chatbot?
You won't want to miss this blockbuster episode on the increasingly common use of artificial intelligence platforms or chatbots to assist them in testifying during remote depositions. It's a serious problem now, and one that's only going to grow over time. Jim Garrity discusses the problem, offers up excellent practice tips for taking and defending remote depositions where a deponent's use of AI is a risk, and, in the show notes, provides a truly extraordinary wealth of authorities applicable to this situation.
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SHOW NOTES
Principal authorities
Jones v. Delta Air Lines, Inc., No. 2:24-cv-11224, 2026 WL 1091186, at *4–5 (E.D. Mich. Apr. 22, 2026) (DeClercq, J.) (recounting the January 8, 2026 emergency status conference held mid-deposition after the pro se plaintiff was seen reading from her screen and admitted ChatGPT was open; court ordered she could not use ChatGPT, any other AI platform, any other person, or “any other anything” to assist in answering, and held she could not invoke attorney-client privilege because no attorney was present and she was not one; case later dismissed with prejudice under Rules 37(b)(2) and 41(b) for persistent discovery noncompliance).
Rudolph v. Harrison Metro. Hous. Auth., No. 2:25-cv-757, 2026 WL 171746, at *1 (S.D. Ohio Jan. 22, 2026) (Vascura, M.J.) (ruling on pro se plaintiff’s motion for accommodations; at the preliminary pretrial conference plaintiff “was advised that she will not be permitted to use generative AI in real time to answer deposition questions”; separately ordering every party using generative AI to draft any filing to submit a captioned declaration identifying the AI-assisted content and platform and certifying Rule 11(b) compliance).
Rudolph v. Harrison Metro. Hous. Auth., No. 2:25-cv-757, 2026 WL 1492598, at *6–7 (S.D. Ohio May 28, 2026) (Marbley, J.) (overruling, under Rule 72(a), plaintiff’s objection to the AI disclosure order; order did not require disclosure of prompts, inputs, or interaction histories and did not treat pro se litigants differently; noting plaintiff’s representation that she would not use AI in real-time proceedings involving sworn testimony; cautioning that AI is no substitute for counsel and that a single fake citation is sanctionable).
Templeton v. Osceola Cnty., No. 6:24-cv-2237-JSS-RMN, 2026 WL 1071592, at *1–2 & n.2 (M.D. Fla. Mar. 26, 2026) (Norway, M.J.) (granting defendant’s motion to compel in-person deposition and denying pro se plaintiff’s motion for protective order; although plaintiff’s documented chronic medical conditions supplied a legitimate reason for a remote deposition, the court found “more persuasive” defendant’s argument that a remote format would prevent it from monitoring plaintiff’s use of extraneous materials and AI; deposition ordered at plaintiff’s home or the federal courthouse, at her election).
Additional authorities on the coaching rationale and privilege claims by self-represented litigants
Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (purpose of a deposition is to find out what the witness saw, heard, or did and what the witness thinks; witnesses testify, not lawyers; coaching is inconsistent with the discovery rules).
Kay v. Ehrler, 499 U.S. 432, 435–36 (1991) (the word “attorney” assumes an agency relationship; basis for rejecting privilege claims by self-represented litigants).
Dveirin v. State Farm Fire & Cas. Co., 2025 WL 1371824, at *15 (E.D. La. 2025), adopted, 2025 WL 1062557 (E.D. La. 2025) (a relationship between two persons is necessary to create the attorney-client privilege). [Verify: the “adopted” WL number precedes the report’s WL number in the article as printed; the two may be transposed.]
Mays v. Ostafin, 2023 WL 4744949, at *3 (N.D. Ill. 2023) (pro se plaintiff may not invoke attorney-client privilege to avoid answering unless the questions concern communications with a professional legal adviser).
Carbajal v. St. Anthony Cent. Hosp., 2014 WL 2459713, at *2 (D. Colo. 2014) (privilege asserted by pro se litigant fails as a matter of law).
Authorities cited within the principal authorities
Whiting v. City of Athens, 170 F.4th 455, 460 (6th Cir. 2026) (cited in Rudolph, May 28, 2026) (citing even a single fake case can be sanctionable; every citation must be personally read and verified).
U.S. EEOC v. Qualtool, Inc., No. 5:21-cv-229, 2022 WL 20564197, at *2 (M.D. Fla. Aug. 25, 2022) (cited in Templeton) (party seeking remote deposition must provide a legitimate reason; burden then shifts to opponent to show prejudice).
Hardy v. Ace Ins. Co. of the Midwest, No. 2:23-cv-221, 2024 WL 3952319, at *1 (M.D. Fla. Aug. 27, 2024) (cited in Templeton) (in-person depositions are the default under the Federal Rules).
Floodbreak LLC v. T. Moriarty & Son, Inc., 754 F. Supp. 3d 330, 333 (E.D.N.Y. 2024); Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp. 3d 571, 575–76 (S.D.N.Y. 2020) (cited in Templeton n.2 as contrary authority) (loss of physical presence alone is not prejudice sufficient to defeat a remote deposition).
Related authorities
Groskreutz v. Agropur, Inc., No. 25-CV-1153, 2026 WL 1694341, at *1–2 (E.D. Wis. June 11, 2026) (Episode 174) (denying remote deposition; in a remote deposition counsel “can never be sure what other materials a witness may be consulting or who might be just off-screen coaching an answer”).
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Rules
Fed. R. Civ. P. 30(c)(1) (examination and cross-examination proceed as at trial under the Federal Rules of Evidence).
Fed. R. Evid. 612 (adverse party’s options when a witness uses a writing to refresh memory: production and cross-examination as of right if used while testifying, 612(a)(1); in the court’s discretion if used before testifying, 612(a)(2) — the latter governs AI output reviewed in preparation).
Fed. R. Civ. P. 30(c)(2) (objections noted on the record; instruction not to answer limited to privilege, court-ordered limitation, or Rule 30(d)(3) motion).
Fed. R. Civ. P. 30(d)(2) (sanctions on a person who impedes, delays, or frustrates the fair examination of the deponent).
Fed. R. Civ. P. 30(d)(3) (motion to terminate or limit a deposition conducted in bad faith or so as to unreasonably annoy, embarrass, or oppress).
Fed. R. Civ. P. 30(b)(3) (method of recording; additional methods only on notice — the rule the unauthorized self-recording in Jones violated; not discussed in the body).
Fed. R. Civ. P. 30(b)(4) (remote depositions only by stipulation or court order; deposition takes place where the deponent answers).
Fed. R. Civ. P. 26(c) (protective orders specifying terms, method, and persons present).
Fed. R. Civ. P. 16(b), 26(f) (scheduling order and discovery plan — vehicles for a pre-deposition AI protocol).
Fed. R. Civ. P. 37(b)(2)(A)(v) and 41(b) (dismissal for violation of discovery orders and failure to prosecute — the basis on which Jones ultimately ended; not discussed in the body).
Fed. R. Civ. P. 72(a) (review of magistrate judge’s nondispositive orders).
Fed. R. Civ. P. 11(b) (certifications on filings; basis of the Rudolph AI-disclosure order, which the body mentions without citing the rule).
Fed. R. Crim. P. 15(e)(2) (scope and manner of deposition examination must be the same as at trial) and 15(f) (use of deposition at trial governed by Federal Rules of Evidence).
Fed. R. Bankr. P. 7030 (Rule 30 applies in adversary proceedings); 9014(c) (Rule 7030 applies in contested matters); 2004(c) (examinations; attendance compelled as provided in Rule 9016; the body’s extension to Rule 2004 examinations is by analogy, not holding); 7026 (Rule 26 applies); 9011 (Rule 11 analog).
AAA Commercial Arbitration Rules; JAMS Comprehensive Arbitration Rules; agency hearing rules generally (silent on AI use by witnesses; the body’s recommendation to address it in the first procedural or prehearing order is the host’s, not drawn from any ruling).
