Can AI-Generated Legal Drafts Be Protected as Work Product?
As the use of artificial intelligence (AI) continues to accelerate across industries, it is unsurprising that courts are beginning to confront its implications in the litigation context. A recent federal decision underscores just how quickly these issues are moving.
Federal Court Rules ChatGPT Communications Are Protected Under the Work-Product Doctrine
On February 10, 2026, a federal court in Michigan held that records reflecting a pro se plaintiff’s use of ChatGPT to assist with legal filings were protected by the work-product doctrine. In Warner v. Gilbarco, Inc., a former employee brought discrimination and related claims against her employer, Gilbarco, Inc (Gilbarco). Notably, the plaintiff represented herself in the litigation and acknowledged during discovery that she used ChatGPT to help draft filings in the case.
What Discovery Did the Employer Seek?
The defendant sought broad discovery of “all documents and information” concerning the plaintiff’s use of third-party AI tools in connection with the litigation. The plaintiff objected, arguing that such materials reflected her internal analysis and mental impressions, and were therefore protected from disclosure.
Why the Court Sided with Work-Product Protection for AI-Assisted Filings
The court agreed with the plaintiff. Rejecting the defendant’s arguments, the court concluded that the plaintiff’s interactions with ChatGPT were shielded by the work-product doctrine. Importantly, the court emphasized that pro se litigants are not categorically excluded from asserting work-product protection. The court further held that the plaintiff did not waive that protection by using an AI tool, noting that waiver generally requires disclosure to an adversary or conduct that substantially increases the likelihood that such materials will reach an adversary.
Does Using AI Tools Waive Work-Product Protection?
Notably, the court observed that ruling otherwise could effectively erode work-product protections in “nearly every modern drafting environment”- a recognition of how deeply embedded AI-assisted tools have become in contemporary legal practice.
What This Means for Employers Using AI in Litigation
This decision reflects a broader judicial acknowledgment of AI as a component of litigation workflows, while simultaneously highlighting emerging discovery risks. For employers and legal practitioners alike, the case serves as a cautionary reminder: the use of AI tools must be approached with care. Even minor missteps in how such tools are used, documented, or retained could have unintended effects – potentially with consequences comparable to waiver of attorney-client communications privilege.
Steps Employers Should Take to Protect AI-Related Work Product
Businesses currently using AI should consider evaluating their internal protocols, implement appropriate safeguards, and proactively address legal or compliance concerns. As the legal landscape continues to evolve, thoughtful oversight, not just adoption, will be critical.
For further guidance on navigating AI-related risks in litigation, please contact the author of this blog, Linda Wang, Partner & Co-Chair of CDF's Privacy Practice Group, for a consultation.
