New England Biz Law Update
Last month, a New York court weighed in on the issue of the application of work product protections to information surrounding a litigant’s use of generative artificial intelligence (AI). This is an area of law that is rapidly evolving, with courts at both the state and federal levels addressing these issues and reaching conflicting conclusions.
Of import is that the underlying facts are distinguishable in many of the cases. The nature of the matter, whether civil or criminal, and the identity of the AI user — sometimes an attorney and others a pro se litigant — necessarily impacts the court’s rationale and ruling.
In a string of recent cases, a number of courts considering the pro se litigant scenario have reached identical conclusions.
In Assini v. Hayward, 2026 N.Y. Slip Op. 26086, New York Supreme Court Justice Rhonda E. Fischer considered whether the results of a pro se defendant’s AI use, obtained in preparation for litigation, must be produced pursuant to the plaintiff’s subpoena in a commercial litigation matter.
The plaintiff sought access to OpenAI’s data related to the defendant’s ChatGPT prompts, outputs, and account information. Specifically, the request was for all of the following from the defendant’s AI accounts: 1. “All prompts, inputs, uploaded materials, and corresponding outputs or generated text used to draft, revise, or generate filings, motions, sworn statements, or communications that were transmitted to Plaintiffs, Plaintiffs’ counsel, the Court, or filed in this action during the relevant time period; and 2. All prompts, queries, uploaded documents, and corresponding outputs specifically referencing: (a) Plaintiffs Fred Assini or Jason Napolitano; (b) Alpha Tech Lending LLC; (c) the claims or defenses asserted in this action; or (d) filings, motions, or correspondence generated for use in this action.”
The defendant moved to quash the subpoena, asserting that his interactions with AI were in preparation for litigation and were thus privileged.
The court concluded that when interacting with generative AI platforms like Claude and ChatGPT, it is reasonable for the end user to have an expectation of privacy and confidentiality. Accordingly, AI use in this context is sufficiently strategic to meet the definition of work product.
In reaching this determination, the court cited Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939, (D. Colo. 2026), finding that a pro se defendant could have a reasonable expectation of privacy and assert work product privilege regarding his AI use, even though publicly available generative AI tools often collect user inputs for training and other purposes.
The court’s ruling also aligns with the holding in Warner v. Gilbarco, Inc., No. 2:2024cv12333 – Document 94 (E.D. Mich. 2026). In that employment discrimination case, the court determined that the pro se plaintiff’s use of AI tools was in preparation for litigation and was not akin to disclosing information to an adversary. Accordingly, the court declined to grant the request for “all documents and information concerning her use of third-party AI tools in connection with this lawsuit, as requested in Defendants’ discovery requests.”
And so another AI privilege case is on the books, with many more to come. As more of these cases are handed down over time, we’ll get a better sense of the consensus on whether AI inputs are considered to be privileged work product. I predict that courts will ultimately treat AI research similarly to other work performed during litigation preparation, whether completed by an attorney or a self-represented litigant. But for now, the law is in flux, and only time will tell if I’m right.
Nicole Black is a Rochester, New York, attorney, author, journalist, and Principal Legal Insight Strategist at http://www.8am.com, the team behind MyCase, LawPay, CasePeer, and DocketWise. She is the nationally recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She can be contacted at [email protected]
