Not so fast on the waiver of privilege for using AI. This court ruled “Defendants’ preoccupation with Plaintiff’s use of AI needs to abate.”

Hat tip once again to Tom O’Connor who is all over this topic.

While a New York court ruled orally that AI created documents sent to counsel are not privileged – then followed up with a written opinion in the case – Michigan Magistrate Judge Anthony P. Patti had a different take on the issue, stating: “To the extent Defendants seek production of ‘all documents and information concerning her use of third-party AI tools in connection with this lawsuit, as requested in Defendants’ discovery requests,’ this request is DENIED, as the information sought is not discoverable.”

More notably, he added: “To the extent Defendants ask the Court to ‘[o]verrule[] Plaintiff’s attorney-client privilege and work-product objections to the AI materials,’ or alternatively, ‘if the Court sustains any privilege or protection as to any item, require Plaintiff, within seven days, to serve a Rule 26(b)(5)(A)-compliant privilege log[,]’ the request is DENIED. Even if this information were discoverable, it is subject to protection under the work-product doctrine, which Plaintiff is permitted to assert.”

Judge Patti added this: “Moreover, to the extent Defendants argue that Plaintiff waived the work-product protection by using ChatGPT, the work-product waiver has to be a waiver to an adversary or in a way likely to get in an adversary’s hand.”

He also said: “And ChatGPT (and other generative AI programs) are tools, not persons, even if they may have administrators somewhere in the background. As Plaintiff noted in her response, Defendants’ motion ‘asks the Court to compel Plaintiff’s internal analysis and mental impressions—i.e., her thought process— rather than any existing document or evidence, which is not discoverable as a matter of law. The motion seeks intrusive post-discovery production based on speculation about what might exist in Plaintiff’s internal drafting process, untethered from Rule 26 relevance, disregarding the heightened protection afforded to opinion work product, and improperly attempting to manufacture a waiver where none exists. At its core, Defendants’ request is a fishing expedition’”.

Judge Patti also agreed with the Plaintiff here, stating: “Additionally, the Court agrees with Plaintiff that the pursuit of this information is ‘a distraction from the merits of this case[,]’ and that Defendants’ theory, which is supported by no case law but only a Law360 article posing rhetorical questions, ‘would nullify work-product protection in nearly every modern drafting environment, a result no court has endorsed.’”

Of course, one week later, the written ruling in the US v. Heppner case linked above would come out. If that case had happened before and been cited, would this ruling have been different? Who knows?

Regardless, Judge Patti must have been tired of the issue in this case when he said in a footnote: “Notably, the Court previously confirmed that Defendants have no evidence of Plaintiff having violated the protective order by uploading documents marked confidential onto an AI platform…The Court also reviewed pertinent and highlighted portions of Plaintiff’s deposition transcript…, which reveals an inordinate amount of questioning about Plaintiff’s use of AI, but again, no suggestion that she uploaded prohibited items. Defendants’ preoccupation with Plaintiff’s use of AI needs to abate.”

So, what do you think? Do you agree with this court that “Defendants’ preoccupation with Plaintiff’s use of AI needs to abate” or the Heppner court that ruled AI documents were not protected by privilege? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Microsoft Designer, using the term “a soup server with dark hair and a dark mustache selling soup to a well dressed robot lawyer with a sign behind the server reading ‘Privilege for You!’”.

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