Uncharted Waters: Work Product Protections for Attorneys’ Use of Generative AI

In support of their consolidated amended complaint, the Plaintiffs attached summaries of their written work that the Plaintiffs’ attorneys generated using ChatGPT. ^[4]  Plaintiffs alleged that the accuracy of these summaries proved that OpenAI illegally copied their original works.  In discovery, OpenAI requested that the Plaintiffs disclose “OpenAI account information, prompts, and outputs for Plaintiffs’ testing of ChatGPT in connection with their pre-suit investigation.”  Tremblay v. OpenAI, Inc., No. 23-cv-3223 (N.D. Cal. Aug. 8, 2024).  Plaintiffs agreed to produce prompts and outputs that led to the examples attached to the complaint but refused to produce prompts and outputs that were not used in the complaint (i.e., the negative test results).^[5]  Plaintiffs claimed that protections for attorney work product shielded unused prompts and outputs from discovery.

The parties submitted their dispute to the presiding magistrate, Judge Robert M. Illman.  Judge Illman ultimately ruled that Plaintiffs’ attorneys’ interactions with ChatGPT were discoverable.  Judge Illman first set forth the familiar standard for the application of work product protections, noting that work product includes “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative . . .”  Tremblay v. OpenAI, No. 23-cv-03223, at 5 (N.D. Cal. Jun. 24, 2024) (quoting Fed. R. Civ. P. 26(b)(3)(A) and citing United States v. Richey, 632 F.3d 559, 567-68 (9th Cir. 2011)).  Judge Illman specifically held that attorney work product is generally exempt from disclosure in discovery unless the requesting party shows a substantial need and demonstrates that it “cannot without undue hardship obtain their substantial equivalent by other means.”  Id. (quoting Fed. R. Civ. P. 26(b)(3)(A)).

Judge Illman also noted that work product can be classified as either fact work product or opinion work product.  Opinion work product, as opposed to fact work product, contains the “mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Id. (quoting Fed. R. Civ. P. 26(b)(3)(B)).  Fact work product is discoverable upon a demonstration of substantial need.  In contrast, to obtain an opinion work product, a requesting party must show that an attorney’s mental impressions are at issue in the case and that the need for the material is compelling.  Id. at 5 (citing Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992)).  A litigant waives work product protections when the litigant reveals or “places the work product at issue during the course of litigation.”  Id. (citing United States v. Sanmina Corp. & Subsidiaries, 968 F.3d 1107, 1119 (9th Cir. 2020)) (emphasis omitted).

Applying this standard, Judge Illman determined that Plaintiffs’ assertion of work product protections over unused prompts and outputs failed.  The Judge found that “account settings and negative test results are more in the nature of fact work product than opinion work product.”  Id.  But even if the work product constituted opinion work product, protections would not apply because Plaintiffs’ negative test results are “reasonably related” to the positive results that Plaintiffs cited in their complaint.  Id. at 6.  Thus, Plaintiffs waived any work product protections that would otherwise apply to their use of ChatGPT during the investigation phase of the litigation.