Texas Business Court recently addressed whether non-lawyer AI work product is protected by privilege, entering a debate shaped by four federal rulings. Three of those decisions-Warner, Morgan, and Tate-protected the materials, while Heppner ordered production. The court's decision now requires Texas litigators to reconcile the competing approaches in their own practice.
The Federal Divide
In Warner, Morgan, and Tate, federal courts held that non-lawyer AI work product fell within the scope of attorney-client privilege or work product doctrine, shielding it from discovery. Heppner, by contrast, found that such materials were not protected and ordered their production. The majority view treats AI-generated drafts, analyses, and communications as extensions of legal work, provided they are created under attorney supervision.
Texas Business Court Weighs In
The Texas Business Court's ruling adds state-level guidance to this mix. Its intervention shows that Texas courts will not remain silent on the issue. Litigators now face the practical question of how to structure AI use in document review, legal research, and case strategy to maintain privilege claims.
Why this matters for Texas litigators
The Texas Business Court's involvement underscores that privilege protections for AI work product are not settled. As law firms increasingly use AI for Legal tasks like document review and legal research, understanding privilege boundaries becomes critical. Litigators should review their workflows to ensure non-lawyer AI use is clearly tied to legal advice and supervised by attorneys. A misstep could expose sensitive materials to discovery. Understanding the federal majority approach and the Texas court's position will be essential to protecting client confidences.
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