Generative AI is rapidly reshaping how legal professionals and litigants prepare for and navigate disputes, raising new and evolving questions about privilege, confidentiality, and discoverability. In a prior article, Liff, Walsh & Simmons attorney James E. Crossan examined these issues through the lens of United States v. Heppner, No. 25-cr-00503-JSR (S.D.N.Y. Feb. 17, 2026), where the United States District Court for the Southern District of New York held that documents prepared using artificial intelligence and shared by a criminal defendant with counsel were not protected by the attorney-client privilege. Building on that analysis, recent decisions, including Warner v. Gilbarco, Inc. and Morgan v. V2X, Inc., highlight how courts are continuing to grapple with the intersection of AI tools and longstanding doctrines like work product protection. Together, these developments underscore the need for attorneys and litigants to stay informed as the legal landscape surrounding generative AI continues to evolve. Liff, Walsh & Simmons continues to monitor these developments closely, as they are likely to have significant and lasting implications for litigation practice.

Generative AI in Work Product: Warner v. Gilbarco, Inc.

In Warner v. Gilbarco, Inc., No. 2:24-CV-12333 (E.D. Mich. Feb. 10, 2026), the defendants sought in discovery from a pro se plaintiff the production of “all documents and information concerning [Plaintiff’s] use of third-party AI tools in connection with this lawsuit, as requested in Defendants’ discovery requests[.]” The U.S. District Court for the Eastern District of Michigan ruled, however, that such materials were not discoverable under Federal Rule of Civil Procedure 26(b)(3)(A) because they were prepared by a party in anticipation of litigation and are protected under the work product doctrine. Moreover, and interestingly, the Court ruled that such materials were “not relevant,” but even if they were marginally relevant, they were “not proportional.”

The defense had argued that the plaintiff waived the work product doctrine by using AI, but the Court disagreed, noting that for there to be a waiver, “the work-product waiver has to be a waiver to an adversary or in a way likely to get in an adversary’s hand.” The Court noted that ChatGPT was not a “person,” and thus there was no waiver. Moreover, the Court noted that the defendants’ request was “a fishing expedition” and ruled that the request was “a distraction from the merits of this case[.]”

Generative AI in Employment Discrimination Case: Morgan v. V2X, Inc.

Morgan v. V2X, Inc., No. 25-CV-01991-SKC-MDB (D. Colo. Mar. 30, 2026) is an employment discrimination case filed by a pro se plaintiff. The Court had entered a Protective Order in the case allowing the parties to designate certain information as “Confidential” when it “is confidential and implicates the privacy or business interests of the parties, including but not limited to: medical and personal financial information, private personnel information, trade secrets, and other proprietary business information.” The Protective Order limited the parties’ ability to use Confidential Information only in certain circumstances.

The defendant filed a Motion seeking an amendment of the Protective Order to address AI-related concerns and to compel the Plaintiff to disclose the AI tool he was using so that the defendant could evaluate whether he is adequately safeguarding confidential information. The plaintiff resisted identifying the AI tool(s) he was using, claiming the AI fell within the work-product doctrine codified in Federal Rule of Civil Procedure 26(b)(3).

The Court, in reviewing the history of the work product doctrine, concluded that it clearly applied to pro se litigants. The court further noted that “courts have broadly interpreted the rule to protect not just litigation preparation materials, but also the mental impressions, opinions, and theories of parties.” The Court further recognized that AI is “one of the most powerful knowledge tools ever to become available to the masses.”

The Court addressed the recent decision by the Southern District of New York in Heppner by distinguishing that case on the ground that Heppner was a criminal case, whereas Morgan is a civil case. Moreover, Heppner involved a party represented by counsel, while in Morgan, the plaintiff was pro se, and thus, was not communicating with an attorney. Thus, the Court concluded that the plaintiff could assert work product protections in connection with his AI use. The Court stated that nearly all electronic interactions pass through third-party systems, such as email servers. Our computers, phones, and smart devices collect information about us. The Court asked rhetorically in its opinion, for example: “Does that mean that anyone with a Gmail account has forfeited all rights to confidentiality and privacy?” A fair question.

The Court ruled as follows as it relates to a pro se party’s use of AI:

…in the context of a pro se litigant’s use of AI to assist with their litigation preparation, the use of AI closely resembles the kind of confidential, strategy-laden iterative work product that Rule 26(b)(3) was designed to protect. In other words, given how AI tools function, it is entirely reasonable for a person to expect some privacy and confidentiality when interacting with these tools, even though they understand a third party is behind the tool collecting and storing their information.

The Court further ruled that, while the use of AI technically “discloses” information to a third-party, it does not result in an automatic waiver of the work product doctrine because it remained highly unlikely the information would fall into the hands of an adversary absent some legal process to compel it. Ultimately, the Court ordered the plaintiff to reveal to the defendant the identity of the AI system he was using so that the defendant could evaluate whether confidential information was being adequately protected. The Court, however, appears to have made clear that, unlike in Heppner, work product protections may be available to pro se civil litigants in federal court.

Takeaways

The legal landscape as it relates to the use of AI is developing at a blistering pace. Attorneys and litigants would be wise to pay close attentions to developments relating to privilege and the use of AI. As it stands, there are now two opinions from U.S. District Courts in other jurisdictions that suggest that the use of AI alone may not result in the waiver of the work product doctrine for pro se plaintiffs. It will be interesting to see if that protection is explicitly expanded in future rules to attorneys’ use of AI. For now, we expect to see parties probe their opponents’ use of AI in discovery and would caution any prospective litigants to be judicious about what you share with AI programs, as it remains possible that a Court could order that such information is discoverable.

About

Richard J. Berwanger, Jr. of Liff, Walsh & Simmons is a member of the firm’s Litigation Practice Group and is the head of the Labor and Employment and Legal Ethics practices. He has years of experience advising both attorneys and law firms on legal ethics issues and defending attorneys before the Attorney Grievance Commission of Maryland and the D.C. Board on Professional Responsibility.

Liff, Walsh and Simmons’ Legal Ethics practice continually tracks developments in the field of legal ethics that may impact attorneys in Maryland and D.C. and their law firms. If you need any assistance developing AI or other ethics policies in your practice, addressing AI mishaps, or if you have any further questions, please contact Mr. Berwanger.

This alert provides general information and is not a full analysis of the matters discussed. It may not be relied on as legal advice. Richard J. Berwanger, Jr. is a Liff, Walsh & Simmons partner licensed to practice law in Maryland and the District of Columbia.