The courts are just starting to grapple with the use of Artificial Intelligence in regard to discovery. Discovery is the critical part of every lawsuit in which one party may “discover” the opposing party’s possible evidence. There is caselaw holding that if a party uses open AI in preparing for litigation, then that party will be deemed to have waived the attorney-client and work-product privileges. In Warner v. Gilbarco, 820 F.Supp.3rd 629 (E.D. Mich. 2026), the defendant sought materials used by the plaintiff in using AI.

ChatGPT

In a straight employment discrimination case, the former employer apparently became convinced the employee used AI in preparing his case. When the defendant deposed the employee, the employer posed an “inordinate” amount of questions to Mr. Warner about his use of AI in preparing for his lawsuit. But, as the court noted, the defendant had no evidence that the plaintiff uploaded or produced confidential documents in violation of the protective order. The defendant, said the court, was engaging in a fishing expedition. The court then flatly told the defendant that its preoccupation with the plaintiff’s use of AI needs to “abate.”

The court pointed out a necessary factor regarding AI: a party may not seek information or documents used by a party when preparing for litigation. For a party to waive the work-product privilege, he must waive that privilege in a way that is likely to “get in an adversary’s hand.” ChatGPT AI is a tool, not a person. Simply using ChatGPT in itself does not waive a privilege. The court does not state so explicitly, but it seems to believe that the plaintiff’s use of ChatGPT was in a closed system, not one that is open to the entire digital universe. See the decision in Warner v. Gilbarco here.