Case law, analysis, and governance references

A represented defendant used Claude AI to draft defense strategies without attorney direction. The court held that privilege did not attach because no attorney was involved at the front end, the AI platform is not an attorney, and the platform’s privacy policy permitted data disclosure. Reuters coverage cites the opinion as 2026 WL 436479. The court noted that attorney-directed AI use may have preserved a privilege claim.

Takeaway: Consumer AI use outside counsel direction can undercut both privilege and work product arguments. Process and direction matter.

A pro se plaintiff used AI tools in litigation preparation. The court protected the materials as work product, rejecting the argument that AI platform use constituted waiver. The court emphasized that the plaintiff was the party, and her internal analysis and mental impressions were protected.

Takeaway: Work product outcomes are fact-specific. Process design, party status, and the nature of materials drive discovery results.

The third federal decision to address AI and discovery. Magistrate Judge Dominguez Braswell held that a pro se litigant’s AI-assisted preparation is protected work product under Rule 26(b)(3), but that the identity of the AI tool used is not protected and ordered its disclosure. The court also imposed an AI-specific protective order barring confidential information from any AI platform unless the provider is contractually prohibited from training on inputs or disclosing them to third parties, and permits deletion on request. Cited as 2026 WL 864223.

Takeaway: Even where work product holds, the choice of AI tool can be discoverable, and confidential material may not be entered into consumer AI absent enforceable contractual safeguards — precisely the controls Saidebar builds into the workflow.

The newest decision and the first from a state court. After an in camera review, Judge Dorfman held that a non-lawyer principal’s ChatGPT conversations prepared in anticipation of litigation are protected work product under Tex. R. Civ. P. 192.5(a)(1), and that using the tool did not waive protection. As in Morgan, the court still ordered the party to disclose, by Bates number, every discovery document it had fed into ChatGPT — including material designated confidential under the protective order — and invited the parties to amend that order to govern AI use. Cause No. 25-BC11B-0020.

Takeaway: Aligning with Warner and Morgan and splitting from Heppner, courts increasingly protect AI-assisted work product but treat the fact and scope of AI use as discoverable. Feeding confidential discovery into consumer AI can itself breach a protective order.

In a discovery dispute, the court compelled production of AI prompts, outputs, account settings, and testing process. The court held that placing a subset of test results in the complaint waived work product protection over related negative results.

Takeaway: AI prompts, outputs, and testing process can become central evidence in litigation. Account settings and interaction history are discoverable.

Recent legal analysis of United States v. Heppner emphasizing that uploads to public AI platforms may be treated as third-party disclosure, undermining confidentiality and privilege.

Comparative analysis of Heppner and Warner, framing practical implications for corporate counsel and best practices including employee policies, litigation hold updates, and closed AI tool requirements.

April 2026 practitioner alert framing Heppner as a warning that unsupervised client-side AI use may fall outside attorney-client privilege.

April 2026 practical guidance for in-house teams and firms on preserving confidentiality and privilege posture in AI-assisted legal workflows.

Concise April 2026 coverage of Heppner focused on litigation and discovery exposure when AI interactions are outside attorney-directed channels.

Comparative analysis of Heppner, Warner, and Morgan, noting an emerging split over whether attorney direction is required for protection, and the open question of how courts will treat a represented party who uses AI without counsel.

Coverage of State of Florida v. OpenAI (June 1, 2026), the first state attorney general action against OpenAI and Sam Altman. The state alleges OpenAI concealed serious risks in ChatGPT — including content that drove users toward self-harm and violence — and seeks to hold Altman personally liable. A marker of accelerating enforcement pressure on consumer AI.