Two recent federal court decisions have offered welcome clarity for litigants and their counsel who are increasingly turning to generative AI tools in the course of preparing…
Two recent federal court decisions have offered welcome clarity for litigants and their counsel who are increasingly turning to generative AI tools in the course of preparing cases. Together, these rulings confirm that traditional work product doctrine principles continue to govern the use of tools like ChatGPT, and that such use does not, standing alone, strip a party of the protections long afforded to litigation preparation materials under the Federal Rules of Civil Procedure.
In Warner v. Gilbarco, Inc. (E.D. Mich. Feb. 10, 2026), a magistrate judge addressed a defendant's argument that the plaintiff had waived work product protection by using ChatGPT during the course of litigation preparation. The court rejected that argument, reasoning that waiver of work product protection requires disclosure of protected materials to an adversary. Because the plaintiff's interaction with the AI tool did not involve any such disclosure, the underlying work product remained shielded from discovery.
Shortly thereafter, in Morgan v. V2X, Inc. (D. Colo. Mar. 30, 2026), the court reinforced this analytical framework. Applying Rule 26(b)(3), the court confirmed that a party's mental impressions, conclusions, opinions, and litigation preparation materials remain protected even when generative AI tools are used as part of the preparation process. The decision underscores that the involvement of technology, in and of itself, does not diminish the substantive protections that the rule was designed to safeguard.
Taken together, these rulings signal an emerging federal consensus: the work product doctrine is flexible enough to accommodate evolving litigation practices, including the responsible use of generative AI. Nevertheless, clients should not treat these decisions as an invitation to use AI tools without appropriate safeguards. Prudent practice calls for the development of clear internal protocols governing which materials may be shared with generative AI platforms, how such interactions are documented, and how confidentiality is maintained. Careful attention to vendor terms of service, data retention policies, and access controls remains essential to preserving privilege and mitigating discovery risks as this area of law continues to develop.
Clients considering how to integrate generative AI into their litigation workflows are encouraged to consult with counsel for advice tailored to their specific circumstances.