Landmark AI rulings will have effect on all litigation

Generative artificial intelligence (AI) tools have quietly moved from novelty to fixture in how lawyers and their clients research, write, and prepare for litigation. Two U.S. federal courts just issued the first rulings of their kind addressing the legal consequences of that shift. The decisions are must-reads, and they carry immediate, practical lessons for anyone involved in litigation.

First case at a glance

In the first case, the court addressed whether a party’s use of generative AI in connection with litigation could be subject to broad discovery (pretrial exchange of evidence). Sohyon Warner sued Gilbarco, Inc., and its parent company, and in response, it demanded all documents and information concerning any use of AI by her or her counsel. The court characterized this request as “a fishing expedition,” finding that Gilbarco sought to “compel [Warner’s] internal analysis and mental impressions—i.e., her thought process—rather than any existing document or evidence.”

The court denied the request to compel, holding that the work product waiver requires disclosure to an adversary or disclosure in a way that’s likely to get into an adversary’s hands, not merely to a software tool. The court emphasized that AI programs are tools, not persons, even if they may have administrators somewhere in the background. The court found that the use of AI tools to assist in case preparation didn’t constitute a waiver of work product protection because there was no disclosure to an actual or a potential adversary.