That's part of libel plaintiff's argument(filed last week) for subpoenaing defendant's AI queries in Fontainebleau Florida Hotel, LLC v. Botach; the defendant is popularly known as Rabbi Shmuley Boteach. From the introduction:
The Court asked whether Botach's communications with AI platforms fall within the scope of "damages" discovery permitted by ECF No. 261, and specifically how those materials relate to malice and the statutory cap on punitive damages. Precedent from the United States Supreme Court and Eleventh Circuit, as well as Florida law, answers that question directly.
Under Fla. Stat. § 768.73(1)(c), the cap on punitive damages lifts entirely where the fact finder determines that "the defendant had a specific intent to harm the claimant" at the time of the injury. As discussed below, legions of cases from trial courts to the Supreme Court hold that post-defamation conduct is probative of whether defamatory statements were made with intent to harm. Specific intent is therefore not background color to the damages trial or damages discovery. Discovery into Botach's intent to harm Plaintiff is damages discovery, and the AI materials are the most direct evidence of that intent.
Botach did not merely publish an errant falsehood on a blog or make a heated statement in a debate. He methodically engineered his attacks—drafting, refining, and iterating for painful effect through the most potent technologies known to humankind. The prompts and chats are his mental state reduced to writing, and they are probative of damages.
And from the defendant's response:
The Court should sustain the objections to the proposed AI-provider subpoenas as drafted and apply the same limits to the overlapping Seventh Request for Production. The issue is whether these demands fall within the scope of "discovery limited to damages." The unresolved punitive amount permits discovery concerning punishment for the adjudicated wrong, not an unrestricted inquiry into Defendant's research or litigation conduct.
The amended complaint already alleges knowing falsity, deliberate fabrication, repeated publication, financial motive, and specific intent to harm. Plaintiff did not pursue AI discovery before the general discovery cutoff. But under the guise of "discovery limited to damages," Plaintiff seeks every responsive AI exchange concerning this litigation, the Hotel, Plaintiff's lawyers, every court order, and the judges. It reaches accounts associated with an expansively defined "Botach," without limiting production to his queries or material used in the actionable publications. The Court should enforce the reopening order before requiring any production and independently preserve substantiated work-product objections.
For more backstory on the case, an excerpt from the long Report and Recommendation issued July 29 by Judge Marty Fulgueira Elfenbein in Fontainebleau Florida Hotel, LLC v. Botach:
This action arises from an encounter between Defendant and then-hotel guest Faiz Akbar … in the lobby of Plaintiff's hotel in December 2024. The Parties sharply dispute the nature of the encounter, who initiated or escalated it, and whether Plaintiff responded appropriately to Defendant's subsequent complaints.
Plaintiff's operative First Amended Complaint alleges that Defendant published false statements concerning the incident and Plaintiff's response to it, including statements that Plaintiff discriminated against Defendant because he is Jewish, knowingly permitted an antisemitic assault to occur on its premises, removed Defendant rather than the alleged aggressor, and refused to cooperate with law enforcement. Based on those allegations, Plaintiff asserts claims against Defendant for defamation and tortious interference with business relationships.
Defendant filed a Counterclaim and Third-Party Complaint asserting claims against Plaintiff and naming Jeffrey Soffer … and Akbar as Third-Party Defendants. Defendant's Counterclaim alleges, among other things, that he was subjected to an antisemitic verbal attack at the hotel, that Plaintiff failed to protect him or adequately cooperate with the ensuing investigation, and that Plaintiff thereafter excluded him from its properties. Defendant asserted claims under federal civil-rights statutes and a claim for tortious interference with business relationships….
The merits of the Parties' competing claims are not directly before the Court in the Motion for Sanctions. Instead, the dispute concerns Defendant's conduct during the litigation, the meaning and scope of the District Court's February 20, 2026 Order …, and whether Defendant's subsequent social-media activity violated that Order in a manner warranting sanctions under Federal Rule of Civil Procedure 16(f) or the Court's inherent authority….
On March 11, 2025, Defendant served a subpoena on the Miami Beach Police Department seeking video footage of the underlying incident that Plaintiff previously provided to the department. The Miami Beach Police Department produced responsive surveillance footage to Defendant's counsel on March 26, 2025, and counsel thereafter transmitted that footage to Defendant. On April 2, 2025, before the entry of a protective order, Defendant posted an excerpt of the surveillance footage to his public Instagram account, which had more than 90,000 followers. On April 7, 2025, the Parties jointly moved for entry of a stipulated protective order governing discovery in this action. The Court entered the Parties' Stipulated Protective Order on April 9, 2025.
The Protective Order provides that material produced by a nonparty is automatically treated as "Outside Counsel Eyes Only" for thirty days following production without the need for an affirmative designation by a party. The Protective Order further prohibits the use of discovery material for any purpose unrelated to this litigation, including any public, commercial, business, or personal purpose. The Protective Order restricts access to material designated as "Highly Confidential" or "Outside Counsel Eyes Only" to specified persons and does not permit unrestricted public dissemination of such material….
On April 10, 2025, one day after entry of the Protective Order, Defendant again posted the surveillance footage to his social-media accounts. On April 16, 2025, Plaintiff formally designated the materials produced by the Miami Beach Police Department as "Highly Confidential," and Plaintiff's counsel communicated that designation to Defendant's counsel. Defendant's counsel then informed Defendant of the designation, after which Defendant removed the footage. Defendant contemporaneously published a social-media post acknowledging that he was "required under the rules to remove the video."
Notwithstanding his knowledge of the Protective Order and Plaintiff's confidentiality designation, Defendant again posted the surveillance footage on September 17, 2025…. Although Plaintiff requested severe evidentiary and litigation-ending sanctions [over this], the undersigned concluded that those sanctions were not then supported by the record because a lesser sanction had not previously been imposed for the violation. The undersigned instead awarded Plaintiff its reasonable attorney's fees and costs attributable to the sanctions motion and expressly admonished Defendant that the Protective Order was not optional. The undersigned further warned Defendant that any future violation of the Protective Order would be treated with the utmost seriousness, including case-dispositive sanctions.
After further proceedings concerning the amount of the award, the Court ordered Defendant to pay Plaintiff $15,000.00 no later than April 26, 2026….
Separate from the Protective Order dispute, the District Court addressed Defendant's social-media activity in connection with pretrial scheduling and discovery matters. On February 10, 2026, Plaintiff moved for an extension of time to take Defendant's deposition and represented that Defendant had repeatedly scheduled and cancelled depositions based on asserted physical limitations while simultaneously publishing social-media content showing him engaged in activities including ice skating, kayaking, and bicycling. The District Court granted Plaintiff additional time to take Defendant's deposition and stated that it was "deeply disturbed by this trend." The District Court cautioned Defendant that sanctions, "potentially including the striking of Defendant's pleadings," would be imposed if the conduct continued….
[In a] February 20 Order, the District Court observed that the communications between the Parties had become "toxic," particularly in light of Defendant's online communications, and agreed with Plaintiff that the time had come for the matter to proceed toward resolution. The District Court stated that it was "deeply disturbed by Defendant's conduct," including his "continued social media attacks aimed at Plaintiff and its counsel" and his attempt to effect service at an address he knew belonged to Soffer's child. The District Court then expressly "DIRECT[ED] Defendant to cease such harassing conduct and social media references to Plaintiff and its counsel during the course of this litigation." …
In the Motion for Sanctions, Plaintiff contends that Defendant continued to publish social-media content referencing Plaintiff, Plaintiff's counsel, and this litigation almost immediately after entry of the February 20 Order. Plaintiff identifies multiple occasions between February 26 and May 28, 2026, on which Defendant allegedly violated the Order. [For more details, see the opinion, but here's one example. -EV] …
The May 24, 2026 social media publications constitute perhaps the most egregious violations of the February 20 Order. To recap, in one video, Defendant alleged that a member of his family was confronted and threatened in Jerusalem by an individual who invoked Plaintiff's counsel. Defendant specifically identified Plaintiff's counsel as the attorney representing the hotel in this action and asserted that this lawsuit was filed to "intimidate and silence him" after he publicly alleged that he had been threatened with murder in an antisemitic attack. Defendant further stated that it "remains unknown whether anyone connected to the ongoing litigation had prior knowledge of, encouraged, or otherwise played any role in the confrontation" and that he "has endured nearly two years of legal and public harassment by [Plaintiff's counsel] and the hotel in an effort to financially and personally destroy him after speaking out about the alleged antisemitic attack."
In the other May 24, 2026 post, Defendant referred to Plaintiff, Soffer, and Plaintiff's counsel, Burstyn, by name, and questioned whether Burstyn appeared in materials associated with Jeffrey Epstein. The post also referenced Burstyn's representation of another client, questioned Burstyn's role in events preceding the death of Virginia Giuffre, criticized Burstyn's representation of Plaintiff, and concluded with an assertion concerning public distrust of attorneys, stating that Plaintiff's counsel "is the reason that 84% of Americans believe that attorneys are scumbags."
These posts did not merely allude to Plaintiff—they expressly identified Plaintiff, Plaintiff's counsel, and the upcoming trial. They therefore violated both components of the District Court's directive. They constituted social-media references to Plaintiff and Plaintiff's counsel, and they also plainly continued the very social-media attacks that prompted the District Court's intervention. These publications therefore fall squarely within the conduct the District Court sought to halt and cannot reasonably be characterized as compliance with the February 20 Order….
And the Magistrate Judge therefore recommended sanctions against the Defendant:
The totality of the record demonstrates that Defendant willfully chose to disregard a clear judicial command. It is undisputed that Defendant knew of the District Court's February 20 Order. Nevertheless, Defendant continued making prohibited social-media references over approximately three months.
The violations were not confined to a single publication or a single day. Instead, Defendant repeatedly returned to social media to discuss Plaintiff, Plaintiff's counsel, and the pending litigation. That pattern is inconsistent with negligence or misunderstanding….
Further, Defendant knew the significance of an order, the requirement that he comply with an order, even if he disagreed with it, and the consequences for failing to follow an order. Not only has Defendant already been sanctioned for violating an order of this Court, but Defendant was also warned about the potential for graver consequences if he violates any other orders….
Turning to the issue of whether lesser sanctions would suffice, the record contains multiple warnings of escalating specificity. The District Court first warned Defendant on February 10, 2026 that continued misconduct could result in striking Defendant's pleadings. Then, on February 20, 2026, the District Court directed Defendant to cease social-media attacks and references to Plaintiff and its counsel. Less than one week later, the undersigned warned Defendant that Court Orders are not optional, that Defendant could not take matters into his own hands, and that future violations would be treated with the utmost seriousness, including the potential for Rule 37(b)(2)(A) sanctions. Those warnings did not produce compliance. Another admonition would repeat a measure the record has already shown to be ineffective with Defendant.
Further, the Court previously imposed a sanction in the form of a $15,000.00 fee award based on Defendant's knowing violation of the Protective Order. The violations of the February 20 Order followed that ruling and the accompanying admonition…. [T]he prior monetary sanction did not deter Defendant from again disregarding a pretrial directive….
At his deposition, Defendant admitted under oath that his social-media publications were intended to cause Plaintiff and Plaintiff's counsel to reconsider their conduct and litigation strategy. Consistent with that testimony, Defendant's May 24 and May 28 posts publicly accused Plaintiff of attempting to destroy him through this litigation, attacked Plaintiff and Plaintiff's counsel personally notwithstanding the Court's directive prohibiting such conduct, and attempted to rally public opinion by requesting "your support" in his trial "Against 'that Hotel' in Miami" where he will "absolutely defeat the antisemitism-deniers."
Defendant therefore used repeated violations of the Court's Order as an extrajudicial litigation tactic designed to influence whether, and under what conditions, Plaintiff continued to prosecute its claims against him. That objective directly implicates the integrity of the judicial process. The pattern of Defendant's repeated, willful violations of the February 20 Order when coupled with his stated intention behind his social-media posts and his history of sanctions and admonitions demonstrate that lesser sanctions will not suffice.
Accordingly, the undersigned concludes that striking Defendant's Answer and Affirmative Defenses, dismissing his Counterclaim with prejudice, and entering default judgment as to liability on Plaintiff's well-pleaded claims constitute appropriately tailored remedies that address the institutional harm caused by Defendant's abuse of the judicial process. {This recommendation is not based upon any determination that Defendant's affirmative defenses or Counterclaim lack substantive merit. Rather, it is based upon Defendant's willful violation of this Court's Order, his deliberate use of those violations as a litigation tactic, and the demonstrated inadequacy of lesser sanctions to secure compliance or preserve the integrity of these proceedings.}
With that said, the recommendation of entry of default judgment would not, by itself, establish the amount of Plaintiff's damages. Plaintiff would remain obligated to establish any unliquidated damages through appropriate evidence and further proceedings and Defendant would be able to defend against such damages claims….
[T]he Court [also] finds it appropriate to award Plaintiff its reasonable attorney's fees and expenses incurred as a result of litigating the Motion for Sanctions. The amount should be determined through a separate fee submission with Plaintiff bearing the burden to establish the reasonableness of its counsel's hourly rate along with the reasonableness of the requested fees….
The post "The AI Data Will Provide an Unrivaled View into the Mind of a Defendant …" appeared first on Reason Magazine.
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