In Tremblay v. OpenAI, Inc., No. 23-cv-03223-AMO (N.D. Cal. Aug. 8, 2024), California District Judge Araceli Martinez-Olguin granted plaintiff’s motion for relief in a prompts and outputs production order, finding that the order to produce all prompts and outputs for Plaintiffs’ testing of ChatGPT was a “misapplication of law” because “the ChatGPT prompts were queries crafted by counsel and contain counsel’s mental impressions and opinions about how to interrogate ChatGPT”.

Case Discussion and Judge’s Ruling

This case involved claims that OpenAI’s ChatGPT was trained using plaintiffs’ copyrighted works without permission. On June 24, 2024, California Magistrate Judge Robert M. Illman granted Defendants’ request to compel (1) OpenAI account information for individuals who used ChatGPT to investigate Plaintiffs’ claims; (2) the prompts and outputs for Plaintiffs’ testing of ChatGPT in connection with their pre-suit testing, including prompts and outputs that did not reproduce, summarize, or support Plaintiffs’ claims; and (3) documentation of Plaintiffs’ testing process. This led to Plaintiff’s instant motion for relief.

In beginning his analysis, Judge Martinez-Olguin stated: “Federal Rule of Civil Procedure 26 protects disclosure of documents and tangible things ‘prepared in anticipation of litigation or for trial.’…Unlike fact work product, ‘opinion work product’ includes ‘an attorney’s mental impressions, conclusions, opinions, or legal theories developed in anticipation of litigation.’…It ‘is virtually undiscoverable.’”

Continuing, he said: “The Order found that the ChatGPT account settings and negative test results are ‘more in the nature of fact work product than opinion work product’ because they are ‘more in the nature of bare facts.’…This is a misapplication of law as the ChatGPT prompts were queries crafted by counsel and contain counsel’s mental impressions and opinions about how to interrogate ChatGPT, in an effort to vindicate Plaintiffs’ copyrights against the alleged infringements.”

Judge Martinez-Olguin also stated: “’[C]ourts differentiate between a waiver of factual work product and a waiver of opinion work product.’…Waiver of fact work product extends to the subject matter of the disclosed work product…The scope of any waiver ‘must be closely tailored … to the needs of the opposing party’ and courts must ‘be careful to impose a waiver no broader than needed to ensure the fairness of the proceedings before it.’…However, opinion work product is discoverable by waiver only where ‘mental impressions are at issue in a case and the need for the material is compelling.’”

Continuing, he added: “Because the Order determined that the prompts and outputs were fact work product, the Order concluded that broad subject matter waiver applied, and that Plaintiffs had waived the privilege as to all account settings, prompts, and outputs for Plaintiffs’ testing of ChatGPT…While a narrow subject matter waiver would apply to fact work product revealed by counsel, applying subject matter waiver here is inapposite to Ninth Circuit law related to waiver of opinion work product.”

In granting plaintiff’s motion for relief in the prompts and outputs production order, Judge Martinez-Olguin stated: “The Order did not conclude – nor did Defendants show – that counsel’s mental impressions are at issue here or that Defendants have a compelling need for the material…Indeed, without further support, Defendants state that the information is necessary to test Plaintiffs’ allegations,…and the Order finds that the negative test results and account settings ‘appear[ ] likely to aid in Defendants’ understanding of Plaintiff’s positive results ….’…Thus, it was improper to extend the scope of the waiver to opinion work product not disclosed in the operative complaint.”

So, what do you think? Are you surprised that the Court granted plaintiff’s motion for relief in the prompts and outputs production order? Please share any comments you might have or if you’d like to know more about a particular topic.

Hat tip to the eDiscovery Today commenter on the previous post, who provided the heads up about this granted appeal!

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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