Even if you’re not using AI yet, your clients are — and they’re not always telling you about it. This disconnect can have strategic implications if you’re involved in litigation. If you don’t get a handle on it early on, your client’s decision to run a few questions by a chatbot could derail the case.
A number of courts have already addressed the issues that arise when parties conduct research using AI tools. The applicability of work-product protection depends on the stage of litigation and the status of the AI user. Is the person appearing pro se? If they’re represented by counsel, was the research conducted at the request of their attorney? Or did they ask someone else to query the AI tool on their behalf?
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For example, in *Morgan v. V2X, Inc*., 2026 U.S. Dist. LEXIS 67939, [Dist. Colorado 2026], the court determined that even though publicly available AI tools often rely on user input to train their models, a pro se plaintiff had a reasonable expectation of privacy sufficient to assert work product protection regarding his AI use.
If a court determines that the work-product doctrine applies, another issue that arises is whether using a third-party AI platform waives that protection. This [remains unresolved](https://nikiblackesq.substack.com/p/are-ai-prompts-privileged-time-will), with some courts treating AI chats as disclosure to a third party, while others have concluded that they’re simply tools, no different from other technologies.
In Assini v. Hayward, 2026 N.Y. Slip Op. 26086 (2026), New York Supreme Court Justice Rhonda E. Fischer considered whether a pro se defendant’s AI use amounted to work product. The court concluded that, because the responses were obtained in preparation for litigation, they were protected by the work-product doctrine since the defendant had a reasonable expectation of privacy and confidentiality.
Most recently, in Fontainebleau Florida Hotel, LLC v. Botach, the court weighed in on a related work product issue. In this case, decided earlier this month, a represented defendant conducted AI research of his own volition.
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In Fontainebleau, the plaintiff sought access to many of the defendant’s communications with third-party AI providers. In opposition to the plaintiff’s discovery demands, the defendant cited Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026) for the proposition that “litigation-related materials do not automatically lose work-product protection merely because a party used a third-party AI platform to prepare them.”
A United States District Court magistrate judge for the Southern District of Florida agreed that using AI tools did not necessarily act as a work product waiver, and concluded that the work product could protect some, but not all, of the defendant’s AI-assisted research.
The court acknowledged the holding in United States v. Heppner, 820 F. Supp. 3d 292 (S.D.N.Y. 2026)—that the defendant’s research, performed independently and not at the behest of counsel, was not protected by work product—but concluded that Heppner does not necessarily establish “that all materials independently prepared by a represented party are categorically unprotected.”
According to the court, work product could protect some of the defendant’s AI research since the “Eleventh Circuit’s interpretation of Rule 26(b)(3)(A) confirms that work-product protection is not limited to materials prepared by counsel but extends to materials prepared by or for a party or its representative in anticipation of litigation.”
Privilege protection is not automatic, however, and applicability turns on “the purpose and circumstances of the particular communications.” Applying that principle, the court determined that all queries related to “producing public-facing statements or pursuing Defendant’s independent activities, rather than preparing the defense of this litigation” were not covered by the umbrella of privilege.
Lastly, in an effort to protect privileged materials while disclosing relevant and discoverable information, the court required the defendant to “identify the withheld material and describe the nature of the asserted protection sufficiently to permit Plaintiff to assess the claim without revealing the protected information itself.”
In other words, content is king. But so is context. Who was using the AI tool, and why were they using it? Answer those questions, and you’re halfway there. In fact, you’d better be prioritizing these issues. Because your clients will use these tools, whether you like it or not.
Rather than ignore this reality, get a handle on it. Talk to your clients about AI, including how to use it and under what circumstances. Explain why you need to be notified when they interact with chatbots about the litigation and how AI research can impact their case.
Make that conversation part of your intake process. Ask whether clients have already discussed the dispute with AI and what they shared. Their answers can help you identify and prepare for potential discovery issues. The bottom line: transparency at the start of a case can make all the difference, and become all the more important as AI becomes ubiquitous.
Nicole Black is a Rochester, New York attorney and Principal Legal Insight Strategist at 8am*, the team behind 8am MyCase, LawPay, CasePeer, and DocketWise. She’s been* blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers*, co-authors* Social Media for Lawyers: the Next Frontier*, and co-authors* Criminal Law in New York*. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at* @nikiblack and she can be reached at [email protected]**.