AI Legal Watch: June

From Work Product to Exhibits -- The Emerging Discoverability of AI Prompt

Sterling Marchand

A recent ruling from a federal magistrate judge in Connecticut signals that courts may increasingly treat certain uses of generative AI as part of an expert's methodology, and therefore discoverable, rather than merely a research aid that can remain hidden.

In climate litigation brought against Shell, Magistrate Judge Thomas Farrish ordered production of AI prompts used by a testifying expert, Dr. Naomi Oreskes, who relied on ChatGPT to help identify and to sort through a large collection of documents in the case. The court reasoned that because the AI-assisted process informed how the expert selected and reviewed relevant materials underlying her opinions, the prompts were relevant to understanding and evaluating the reliability of the expert's methodology. The court noted that in expert discovery, an opposing party is entitled to examine not only an expert's conclusions, but also the