Some Communications by Rabbi Shmuley with AI Platforms May Be Discovered in Order to Determine Punitive Damages

From Wednesday's decision in Fontainebleau Florida Hotel, LLC v. Botach [Rabbi Shmuley], decided by Magistrate Judge Marty Fulgueira Elfenbein:

Plaintiff's four subpoenas to the AI Providers and its Seventh RFP seek the same information, specifically Defendant's communications with AI platforms since December 3, 2024, concerning various categories of subjects:

1. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to the Fontainebleau Hotel.
2. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to this litigation.
3. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to counsel for Plaintiff.
4. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any employee, owner, or representative of the Fontainebleau Hotel.
5. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to any Court Order entered during this litigation.
6. All of Defendant's AI Communications with AI since December 3, 2024, concerning or relating to Judge K. Michael Moore or the undersigned.

In addition, to these six categories, Plaintiff seeks one more category of documents in the subpoenas to the AI providers (but not in the Seventh RFP), consisting of:

7. All of Defendant's AI Communications regarding Requests 1 through [6] that have, since their creation, been deleted….

Plaintiff [argued] that Defendant's AI communications may reveal the extent of his alleged malice toward Plaintiff, the intentionality underlying his conduct, and evidence relevant to the determination of punitive damages, including whether an exception to Florida's statutory cap applies….

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged matters relevant to a party's claims or defenses and proportional to the needs of the case. The Rule expressly recognizes that information within the permissible scope of discovery need not be admissible in evidence to be discoverable…. The District Court's Order at ECF No. [261], which authorized the Parties to conduct "discovery limited to damages," also governs the scope of discovery at this juncture…. Thus, the relevant inquiry is whether the particular AI communications sought by Plaintiff bear a sufficient relationship to the damages issues remaining in this action….

The degree of reprehensibility, the defendant's intent, and the circumstances surrounding the wrongful conduct are … relevant to determining an appropriate punitive-damages award…. To the extent Defendant used AI platforms to generate, revise, or refine statements concerning Plaintiff, its counsel, or its representatives, those communications may reveal not merely the final content of Defendant's statements but also the purpose for which the statements were created, the instructions Defendant supplied, and the effects he sought to achieve. Such information may provide evidence of the intent underlying Defendant's conduct that cannot necessarily be discerned from the resulting public statements alone. The Court does not determine that those communications will establish malice or specific intent to harm; it determines only that they bear a sufficient relationship to those disputed damages issues to warrant discovery….

According[] to Defendant, his alleged hostility does not necessarily prove constitutional actual malice, and it therefore should not be considered when deciding whether punitive damages are appropriate. Constitutional actual malice in a defamation action concerns knowledge of falsity or reckless disregard for truth. By contrast, the reprehensibility inquiry and the specific-intent exception under section 768.73(1)(c) require consideration of the defendant's culpability and intent to harm the claimant. Evidence of hostility, planning, or deliberate efforts to inflict or amplify injury to Plaintiff may be relevant to those questions when sufficiently connected to the alleged wrongful conduct here.

Plaintiff seeks evidence not simply to establish that Defendant disliked the Hotel, but to determine whether Defendant deliberately engaged in conduct intended to cause injury and whether that intent bears on the reprehensibility and statutory treatment of the punitive damages sought. The Court therefore rejects Defendant's argument that because hostility does not necessarily prove constitutional actual malice, it should not be considered when deciding whether punitive damages are appropriate.

Nor does the fact that some requested communications postdate the original publications render them categorically undiscoverable. Subsequent statements and conduct may, depending on their content and context, provide circumstantial evidence of a defendant's earlier intent or reveal a continuing course of conduct relevant to the injury. The temporal relationship between a communication and the alleged injury may affect its probative value, but it does not create an absolute bar to discovery….

The Court does not hold that every subsequent statement by Defendant may support an award of punitive damages. The Supreme Court has cautioned that punitive damages may not be used to punish a defendant for unrelated or dissimilar conduct merely because that conduct reflects poorly on the defendant's character. But the permissible scope of discovery is broader than the scope of evidence that may be ultimately admitted at trial. The present inquiry is whether the requested information is relevant and proportional under Rule 26(b)(1) to the damages issues remaining in this case.

Here, Plaintiff alleges a continuing course of conduct directed toward the Hotel, its personnel, and its representatives, including conduct involving AI-generated content. Plaintiff has also identified testimony from its damages expert concerning the alleged cumulative effect of Defendant's continuing online activity on the Hotel's reputation and business. As such, Defendant's communications with AI platforms concerning the Hotel and the Hotel's employees, owners, or representatives, including Plaintiff's counsel, may reveal information relevant to Defendant's alleged intent to harm Plaintiff, the nature and persistence of the challenged conduct, and the extent to which that conduct allegedly amplified Plaintiff's injuries. The Court therefore concludes that Request Nos. 1 (seeking AI communications about the Hotel), 3 (seeking AI communications about Plaintiff's counsel), and 4 (seeking AI communications about any employee, owner, or representative of the Hotel) in the subpoenas to the AI providers and the Seventh RFP fall within the scope of damages discovery authorized by the District Court….

Further, to the extent Request No. 7 in the subpoenas to the AI providers … seeks Defendant's AI communications regarding Requests Nos. 1 through [6] that have been deleted since their creation, the Court concludes that this Request is authorized by the District Court's Order only to the extent it seeks any deleted AI communications regarding Request Nos. 1, 3, and 4….

But the court rejected the other requests, which dealt with AI communications "concerning or relating to this litigation" (2), "concerning or relating to any Court Order entered during this litigation" (5), and "concerning or relating to Judge K. Michael Moore or the [Magistrate Judge]" (6):