{"id":149860,"date":"2026-08-24T20:59:20","date_gmt":"2026-08-24T20:59:20","guid":{"rendered":"https:\/\/www.europesays.com\/ai\/149860\/"},"modified":"2026-08-24T20:59:20","modified_gmt":"2026-08-24T20:59:20","slug":"when-your-client-uses-chatgpt-the-emerging-work-product-rules-2","status":"publish","type":"post","link":"https:\/\/www.europesays.com\/ai\/149860\/","title":{"rendered":"When your client uses ChatGPT: the emerging work product rules"},"content":{"rendered":"

Your client receives a complaint or demand letter. Before they call you, they upload it to ChatGPT<\/a> and ask: What are my best defenses? From there, the client continues to use generative AI<\/a> on their own to evaluate discovery<\/a>, test arguments, and draft communications with the counterparty, all without telling you.\n<\/p>\n

\"MindNaturally, opposing counsel wants all your client\u2019s generative AI inputs and outputs in discovery. Must they be produced?\n<\/p>\n

The basic Rule 26(b)(3)<\/a> work product<\/a> framework protects (1) documents and tangible things, (2) prepared by or for a party or the party\u2019s representative, (3) in anticipation of litigation or for trial.<\/p>\n

On its face, that familiar framework seems adaptable to AI-assisted litigation preparation. But the first cases to address the issue reveal some nuanced questions: whose AI-assisted litigation preparation qualifies for protection, and who counts as a party\u2019s representative?\n<\/p>\n

\"MatthewCourts have recognized work product protection where pro se litigants<\/a> used generative AI to help prepare their own employment cases. A more recent Massachusetts decision, however, declined to extend that protection where a represented plaintiff\u2019s nonlawyer girlfriend performed the AI-assisted work in a business dispute.\n<\/p>\n

Between these cases remains an unresolved and increasingly important question for business litigators: whether a represented party\u2019s own, independent use of generative AI to prepare for litigation is protected as work product. The developing case law has important implications for how business litigators advise their clients.<\/p>\n

The first principle to emerge from the cases is that, generally, a self-represented litigant\u2019s own AI-assisted litigation-preparation work can be protected as work product.\n<\/p>\n

In Warner v. Gilbarco, Inc., an employment case from the Eastern District of Michigan, the pro se plaintiff used ChatGPT to assist him with his litigation, and the defendant moved to compel production of the AI-assisted materials.\n<\/p>\n

The court held that the plaintiff could assert work product protection over those materials, reasoning that ChatGPT and similar programs are \u201ctools, not persons,\u201d and that the defendant was essentially seeking the pro se litigant\u2019s analytical and drafting process in anticipation of litigation, materials traditionally protected by the work product doctrine.\n<\/p>\n

The first cases to address the issue reveal some nuanced questions: whose AI-assisted litigation preparation qualifies for protection, and who counts as a party\u2019s representative?<\/p>\n

Similarly, in Morgan v. V2X, an employment case from the District of Colorado<\/a>, the court acknowledged that work product protection can extend to a pro se litigant\u2019s AI use, reasoning that a pro se litigant plays the part of both a party and an advocate, and that the power of AI \u201cmake[s] that dual role surmountable\u201d for unrepresented litigants. The court did not grant blanket protection, however: it ordered the plaintiff to disclose which AI tool had been used and imposed guardrails on the plaintiff\u2019s AI use going forward.\n<\/p>\n

A second principle to emerge from the recent case law is that use of a third-party AI platform does not necessarily waive work product protection. Courts have held that waiver occurs only where the disclosure is made to an adversary, not merely to any third party.\n<\/p>\n

The Warner and Morgan courts reasoned that AI platforms are tools, not adversaries, and that the materials were unlikely to reach the adversary absent some mechanism for obtaining them, such as legal process.\n<\/p>\n

Shealy v. Seaside Investments, a recent decision from the Massachusetts Superior Court<\/a>\u2018s\n<\/p>\n

Business Litigation<\/a> Session, comes out the other way. There, the girlfriend of a represented plaintiff used ChatGPT to prepare a response to a demand letter and other materials related to the dispute. When the defendant sought to compel disclosure of those materials, the court rejected the plaintiff\u2019s work product arguments and allowed the defendant\u2019s motion.\n<\/p>\n

The court reasoned that neither the ChatGPT prompts nor the AI-generated output had been prepared by a qualifying \u201crepresentative,\u201d explaining that the girlfriend\u2019s queries and the resulting output would be shielded from disclosure only if performed at the request of plaintiff\u2019s counsel.\n<\/p>\n

In reaching that conclusion, the court distinguished Warner and Morgan, both of which involved pro se litigants who personally used generative AI in preparing their own cases \u2014 circumstances in which there is no \u201cgap between the party and the attorney\u201d because a \u201cpro se litigant is simultaneously the party and the advocate.\u201d\n<\/p>\n

But the distinction between Warner and Morgan, on one hand, and Shealy, on the other, turns not on whether the litigant is represented by counsel, but on whether the person who used generative AI is a qualifying \u201crepresentative\u201d of the party, or someone acting under a qualifying representative\u2019s direction, under Rule 26(b)(3), which protects qualifying materials prepared \u201cby or for another party or its representative.\u201d\n<\/p>\n

In Shealy, the plaintiff himself did not interact with ChatGPT; his girlfriend did. Thus, Shealy does not necessarily establish that representation itself defeats work product protection for independent AI-assisted litigation preparation. The materials at issue were not prepared by the party, but by a third person whom the court did not treat as a qualifying \u201crepresentative\u201d within the meaning of Rule 26(b)(3).\n<\/p>\n

Whether a represented party\u2019s independent interactions with generative AI are protected by Rule 26(b)(3) is a question that remains unanswered in the civil context. In that circumstance, the materials would at least facially satisfy the rule\u2019s requirement that they be prepared \u201cby \u2026 another party \u2026 .\u201d On the other hand, the absence of direction by counsel arguably creates a sufficient \u201cgap between the party and the attorney\u201d to preclude application of the work product doctrine.\n<\/p>\n

Rather than guess how a court might answer this question, the prudent lawyer will avoid the question altogether. Address your client\u2019s use of generative AI at the outset of your engagement. Tell your clients that independent use of AI in connection with the litigation may create material that has to be produced in discovery. Put a provision in your engagement letter that directs the client not to use AI regarding the case unless counsel specifically instructs them to. Include the same provision in any subsequent litigation hold notices.\n<\/p>\n

Generative AI is novel. But the first wave of civil cases suggests that courts are largely addressing it through longstanding principles. The difficult questions concern who created the AI-assisted material, at whose direction, and whether that person and that process fall within the categories protected by the work product doctrine.\n<\/p>\n

For business litigators, the immediate concern is what clients \u2014 and everyone assisting them \u2014 are doing with generative AI outside counsel\u2019s supervision. Addressing client AI use early can help avoid a discovery headache later.\n<\/p>\n

Matthew A. Kane is Smith Kane\u2019s managing partner and a member of the Boston firm\u2019s management team. He represents banks, financial institutions, businesses and individuals as a member of the firm\u2019s business litigation practice.<\/p>\n","protected":false},"excerpt":{"rendered":"Your client receives a complaint or demand letter. Before they call you, they upload it to ChatGPT and…\n","protected":false},"author":2,"featured_media":149861,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[54093,73102,580,13590,33995,223,73300,157,73301,73302,73103],"class_list":["post-149860","post","type-post","status-publish","format-standard","has-post-thumbnail","category-openai","tag-business-and-corporate-law","tag-business-litigation","tag-chatgpt","tag-discovery","tag-district-of-colorado","tag-generative-ai","tag-massachusetts-superior-court","tag-openai","tag-pro-se-litigants","tag-rule-26b3","tag-work-product"],"_links":{"self":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts\/149860","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/comments?post=149860"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/posts\/149860\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/media\/149861"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/media?parent=149860"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/categories?post=149860"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/ai\/wp-json\/wp\/v2\/tags?post=149860"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}