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 functions as “simultaneously the party and the advocate” and thus extends work-product protection.

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 AI use in connection with the lawsuit. The court found similar protection applied to the pro se party’s AI usage under work-product doctrine.

Most recently, in Assini v. Hayward, 2026 NYLJ LEXIS 916 (Sup. Ct. Nassau Cnty. June 4, 2026), the moving party subpoenaed OpenAI for a pro se defendant’s ChatGPT prompts relating to litigation. The Assini court cited Morgan and Warner as persuasive authority and quashed the subpoena based on work product grounds. However, the court reminded the pro se party that AI use “cannot go unfettered” and referenced obligations under 22 NYCRR § 161.

The Emerging Distinction: Represented Parties, Pro Se Parties, and AI Platforms

These cases suggest courts treat AI use differently based on context. Heppner involved a represented criminal defendant who used Claude independently without counsel direction, and materials were not deemed work product. Conversely, Warner, Morgan, and Assini involved pro se litigants in civil matters where courts protected litigant thought processes and litigation strategy more robustly. How courts will treat AI materials produced by represented parties with counsel remains uncertain.

Practical Takeaways

AI usage persists among pro se litigants, represented parties, and attorneys. Case law continues developing regarding AI communication discoverability and privilege protection, and litigants and litigation-connected third parties should remain informed about AI usage implications.

For questions about AI usage in litigation, contact Harrison Clinton at (703) 526-5587 or hclinton@beankinney.com or Andrew Gregg at (703) 284-7254 or agregg@beankinney.com.

Disclaimer: 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.