Two courts issued the first reasoned decisions on whether AI prompts and outputs used in litigation preparation are discoverable, and both ruled in favor of protection. The rulings, handed down two days apart in June, give litigators their first citable authority on a question that has emerged alongside generative AI adoption in law practice.
In Tate Group Automotive, LLC v. Legacy Automotive Capital, LLC, the Texas Business Court held on June 3 that a party's ChatGPT conversations were protected work product. The next day, the Supreme Court of New York in Nassau County quashed non-party subpoenas seeking a litigant's AI prompts, uploads, and outputs, recognizing that AI-assisted litigation preparation can qualify as protected trial-preparation material.
New York protects the pro se litigant's AI workspace
In Assini v. Hayward, plaintiffs subpoenaed an AI provider for a self-represented defendant's prompts, uploaded materials, and outputs used in preparing case filings. The court granted the motion to quash under CPLR 2304, holding that confidential, strategy-focused AI use falls within the trial-preparation doctrine - whether the sounding board is a colleague, notebook, or chatbot.
The court rejected the argument that entering case strategy into a third-party AI service forfeits confidentiality.
Texas extends work product to non-lawyer party communications
The Texas decision reaches further in one respect. Tate Group held that ChatGPT conversations conducted by a party principal - not a lawyer, and not a litigant acting as own counsel - were protected attorney work product under the Texas rule, and that using ChatGPT did not waive protection.
Texas Rule of Civil Procedure 192.5 defines work product to include material prepared or mental impressions developed in anticipation of litigation by or for a party or its representatives. The court found that language broad enough to reach a party's own AI-assisted litigation preparation.
The ruling carried a significant qualification. While the chat logs were shielded, the court ordered the plaintiff to disclose all discovery materials that had been shared with ChatGPT, including materials produced under the protective order.
Limits of the emerging doctrine
The decisions sketch a developing area of law: AI prompts and outputs created for litigation are trial-preparation materials, and the medium does not control. But the protection is neither absolute nor uniform.
One federal magistrate judge has already ordered a party to produce AI prompts used by a testifying expert, reasoning they were part of the expert's discoverable methodology under Rule 26. Expert methods are discoverable to evaluate opinion reliability, so protected AI chats do not shield uploaded documents in that context.
Work-product protection also yields to a showing of substantial need and undue hardship, unlike privileges. Expect future fights to shift from threshold questions of whether protection applies to which tier of protection covers particular materials.
Practical guidance for litigants and counsel
Several practices strengthen protection when disputes arise:
- Segregate litigation AI use into dedicated accounts.
- Mind confidentiality settings - no-training commitments and retention controls improve the waiver analysis.
- Counsel clients, including non-lawyers, early on the discovery implications of AI use.
- Update protective orders to account for AI-assisted preparation.
- Prepare to defend triggers and log AI-related materials with specificity.
The emerging rules pair protection with supervision - misuse remains sanctionable even where underlying chats are shielded. For legal teams integrating AI into case preparation and discovery workflows, a well-documented process is the best defense against both waiver arguments and sanctions motions.
For professionals building those workflows, resources like AI Learning Path for Paralegals can help translate these rulings into daily practice. And AI for Legal tracking developments in this area could help professionals identify where courts might draw the next lines.
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