Fontainebleau Florida Hotel v. Botach

What happened

Fontainebleau Florida Hotel, LLC v. Botach is a defamation action in the Southern District of Florida, No. 25-cv-20251. After the defendant's pleadings were struck, the District Court reopened "discovery limited to damages," and later extended that window through November 9 without widening it.

The hotel served a Seventh Request for Production and proposed 4 subpoenas to AI service providers. Both sought the defendant's communications with AI platforms since December 3, 2024, on 6 subjects: the hotel; the litigation; the hotel's counsel; any employee, owner or representative of the hotel; any court order; and the two judges assigned to the case. The subpoenas added a seventh request for responsive communications that had since been deleted. The order does not name the providers.

The hotel argued that the defendant's prompts and revisions could show intent, malice and a continuing campaign, and could bear on whether Florida's cap on punitive damages applies. Its damages expert had testified that continuing online activity amplified the reputational injury. The defendant answered that the requests reopened liability discovery and reached work product (material prepared in anticipation of litigation), relying on Warner v. Gilbarco.

What the court did

On October 21, Magistrate Judge Marty Fulgueira Elfenbein entered the Second Order After Discovery Hearing, ECF No. 289, following a hearing on October 8. In Fontainebleau v. Botach the order overruled the scope objection to Request Nos. 1, 3 and 4, and to No. 7 insofar as it reached deleted material on those subjects. It sustained the objection to Request Nos. 2, 5 and 6, finding chats about the litigation, court orders and the judges too remote from damages. The order states that the court "does not determine that those communications will establish malice or specific intent to harm."

On work product, the order discussed United States v. Heppner and Warner v. Gilbarco and read neither as a categorical rule. It rejected the blanket objection but preserved document-specific claims, which must be supported by a privilege log under Rule 26(b)(5)(A). In the magistrate judge's words, "a party's communications with and use of AI does not automatically establish either discoverability or protection."

The order denied the hotel's oral motion, ECF No. 288, to compel the defendant to sign consents allowing the providers to disclose his records. It permitted Rule 45 subpoenas limited to the 3 allowed subjects and directed the parties to agree how providers would produce, so the defendant could screen for work product first. It states that nothing in it compels a nonparty provider to produce.

The signed order is available as a PDF copy.

Where it stands

A follow-up discovery hearing was tentatively set for October 26 at 1 p.m. Whether revised subpoenas issued, which providers received them, and whether any provider objected or produced records were not located as of October 30. The defendant has a separate interlocutory appeal in the Eleventh Circuit over restrictions on his extrajudicial speech; the order states that appeal did not divest the court of jurisdiction over damages discovery. Fontainebleau v. Botach remains in its damages phase.

The obligation it engaged

Fontainebleau v. Botach concerns a party, not an expert, but the point carries over directly. A conversation with an AI system is a record held by a third party, and a court may allow it to be subpoenaed when its subject bears on a live issue. Clause 6 of the Standard, custody and confidentiality, asks a professional to submit nothing to a system the professional is not free to submit. An expert who pastes case material into a consumer chat account creates a second copy outside counsel's control, held by a provider that can be served.

Clause 7, contemporaneous record, and Clause 8, disclosure, address the rest. The Fontainebleau v. Botach order required a document-specific privilege log in place of a blanket objection. An expert who logs each use of a system as it happens, with its purpose, can tell retaining counsel exactly which exchanges exist and why they were made. One who cannot leaves counsel to argue protection for material no one has inventoried.

Sources

• U.S. District Court for the Southern District of Florida (copy hosted by Damien Charlotin's AI case database) · October 21, 2026
  Fontainebleau Florida Hotel, LLC v. Botach, No. 25-cv-20251, Second Order After Discovery Hearing, ECF No. 289

What could not be confirmed

The order does not identify the 4 AI service providers or the AI tools the defendant used. The outcome of the follow-up hearing tentatively set for October 26, 2026, the issuance of revised subpoenas, and any provider objections or productions were not located as of October 30, 2026. The order was read from a hosted copy; the docket itself was not checked.