Before getting started on the blog entry of the week, a housekeeping matter. My daughter is coming in for spring break at the end of this week and then leaving at the end of the following week. So, it is unlikely I will have a blog entry next week. I certainly plan on a blog entry for the week after.

 

Recently, we blogged on the case of U.S. v. Heppner, here, where the United States District Court for the Southern District of New York held that a person faced with criminal proceedings who used AI as a tool for getting a handle on on the indictment and what might follow without first seeking the direction of legal counsel, waived attorney-client and work-product privileges. It turns out on the same day that decision came down, the United States District Court for the Eastern District of Michigan in Warner v. Gilbarco, Inc., an employment matter, here, took a very different view of things. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning why the documents were not discoverable; and thoughts/takeaways. This blog entry is so short that I imagine the reader will want to read the whole thing.

 

I

Facts

 

The opinion deals with a discovery dispute and sorting through it is a bit confusing. Basically, defendants sought production of all documents and information concerning plaintiff’s use of third-party AI tools in connection with the lawsuit. Plaintiff refused, and the court was faced with how to deal with that refusal.

 

II

Court’s Reasoning Why The Documents Were Not Discoverable

 

  1. Ordinarily, a party may not discover (emphasis in opinion), documents and tangible things that are prepared in anticipation of litigation or for trial by another party (emphasis in opinion), or its representative.
  2. In a footnote, the court noted that defendants have no evidence of the plaintiff having violated a prior protective order by uploading documents marked confidential onto an AI platform.
  3. Even if the information was discoverable, the information sought is protected under the work-product doctrine.
  4. To the extent that the defendants argue that plaintiff’s waived the work-product protection by using ChatGPT, the work-product waiver has to be a waiver to an adversary (emphasis in opinion), or in a way likely to get in an adversary’s hand.
  5. ChatGPT and other generative AI programs are tools, not persons, even if they may have administrators somewhere in the background.
  6. As plaintiff noted in her response to the discovery requests, the defendants are asking the court to compel plaintiff’s internal analysis and mental impressions (her thought process), rather than any existing document or evidence, which is not discoverable as a matter of law.
  7. Defendants motion seeks intrusive post-discovery production based on speculation about what might exist in plaintiff’s internal drafting process, untethered from Rule 26 relevance, disregarding the heightened protection given to opinion work-product and improperly attempting to manufacture a waiver where none exists.
  8. At its core, defendants by making their request are doing nothing more than engaging in a fishing expedition.
  9. The court agrees with the plaintiff that the pursuit of this information is a distraction from the merits of the case.
  10. The court also agrees with the plaintiff that defendant’s theory, which is unsupported by any case law and only a Law360 article posing rhetorical questions, would nullify work-product protection in nearly every modern drafting environment, a result no court has endorsed.

 

III

Thoughts/Takeaways

 

  1. AI raises questions of protection of the attorney-client privilege and the work-product privilege. The work-product privilege is probably the broader of the two privileges.
  2. Can Heppner and Warner, decided on the same day and very likely without knowledge of the other, be reconciled? I don’t think so. So, it will be interesting to see how this developed going forward.
  3. I do believe the Warner court has a point in saying that a broad waiver of the work-product privilege as a result of using AI, nullifies work-product protection in nearly every modern drafting environment of the world we find ourselves in today.

Stay tuned for sure.