In our prior article on United States v. Heppner, we discussed whether a litigant’s conversations with artificial intelligence are protected as privileged or work product. Since Heppner, three additional court decisions have been rendered which complicate the landscape, particularly in the context of pro se litigants.
The New Decisions
In Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939 (D. Colo. Mar. 30, 2026), the court took a more detailed look at AI use by a pro se party, ultimately concluding that the pro se party’s AI generated documents were protected by the work-product doctrine. The court distinguished Heppner, a criminal matter that did not involve a pro se party, noting that “[a] pro se litigant is simultaneously the party and the advocate” and thus extending the work-product privilege.
In Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. Feb. 10, 2026), the defendants sought discovery from a pro se plaintiff regarding the party’s use of AI in connection with the lawsuit. Similar to the finding in Morgan, the court found that the pro se party’s use of AI was protected by the work-product doctrine.
Most recently, in Assini v. Hayward, 2026 NYLJ LEXIS 916 (Sup. Ct. Nassau Cnty. June 4, 2026), the moving party went straight to the source, subpoenaing third-party OpenAI for a pro se defendant’s ChatGPT prompts relating to the litigation. The Assini courtcited Morgan and Warner as persuasive authority and quashed the subpoena on the grounds of work product. However, the court did remind the pro se party of its obligations to the court relating to AI usage, including those codified at 22 NYCRR § 161, noting that AI use “cannot go unfettered.”
The Emerging Distinction: Represented Parties, Pro Se Parties, and AI Platforms
These cases suggest that courts are not treating all AI use the same. Heppner involved a represented criminal defendant who used Claude on his own initiative, without direction from counsel, and the court found that the resulting materials did not reflect counsel’s work product. Warner, Morgan, and Assini involved pro se litigants using AI in civil litigation, where the courts were more protective of the litigant’s own thought processes and litigation strategy. It remains to be seen how courts will treat AI generated materials that are produced by parties represented by legal counsel, who may or may not be using AI with or at the direction of counsel.
Practical Takeaways
AI usage is here to stay, including by pro se litigants, represented parties, and attorneys alike. Case law is still developing as to when, if ever, AI communications are discoverable or protected by pertinent privileges, but litigants and third parties connected to litigation should remain vigilant and informed as to their AI usage.
If you have questions about the usage of artificial intelligence in litigation or legal proceedings, please contact Harrison Clinton at (703) 526-5587 or hclinton@beankinney.com or Andrew Gregg at (703) 284-7254 or agregg@beankinney.com.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.