Discovering AI: For Now, Tried and True Rules of Discovery Still Govern Requests for AI Materials

Discovering AI is a series that explores the effect—or lack thereof—that artificial intelligence (as discoverable object) has had on the discovery process.  Does AI-generated material have a heightened threshold of discoverability?  Should it? Do courts need new AI-specific guidelines to regulate discovery?  And what should organizations do if, during the course of litigation, an opposing party seeks AI-generated or AI-based materials?  Answers to these questions and more continue to develop as courts and rules committees across the United States are confronted with the proliferation of AI through workplaces, law firms, and just about every aspect of daily life.  The goal of this series is to provide helpful hints to clients of any industry about a topic that is exciting in its novelty but far-reaching and consequential in its impact. Join us as we navigate the evolving intersection of AI and discovery in the articles to come.

Artificial intelligence (“AI”) can be a useful tool during the discovery phase of litigation.  For example, AI tools can fill in boilerplate discovery requests and responses or provide speedy document review summaries. Separate from its use in discovery, however, AI can also be discoverable.  As AI-based lawsuits continue to flow through American courts, a clearer picture is emerging—a picture that, interestingly, emphasizes analysis under traditional procedural and evidentiary rules that have governed discovery requests, production, and preservation for decades. 

Many thought pieces discussing discovery of AI-generated or -related materials focus on privilege—whether the work product doctrine or attorney-client privilege protect these AI materials.  This is important and helpful analysis. But this particular piece takes a step back to view the forest, not just the trees.  As noted above, there is something that many of the most recent AI discovery decisions share:  reliance on tried-and-true rules of procedure and evidence.  As discussed below, the proliferation of AI has not circumvented well-worn paths of discovery. 

Ol’ Reliable: Traditional Parameters of Discovery Still Apply 

Discovery of AI-generated or -related information is not a free-for-all.  The Federal Rules of Civil Procedure, or a state equivalent, still apply. This may seem like a “duh” moment—of course a whole new body of AI law as it relates to discovery isn’t going to mushroom up overnight.  But note that state and Federal rules committees do have the power to recommend such AI-specific laws.  In other words, it is an option, but, as can be seen below in the list of recent AI-based or AI-adjacent discovery decisions, only one, a state court decision, appears to reference any AI-specific guideline.  The rest provide analysis under preexisting discovery rules: 

• Tremblay v. OpenAI, Inc., No. 23-cv-03223, 2024 WL 3748003 (N.D. Cal. Aug. 8, 2024): Analysis of discovery of ChatGPT inputs and outputs under FRCP 26(b)’s work product doctrine.
• Concord Music Group, Inc. v. Anthropic PBC, No. 24-cv-03811, 2025 WL 1482734 (N.D. Cal. May 23, 2025): Analysis of discovery of Claude prompts and outputs under FRCP 26(b)’s work product doctrine.
• Warner v. Gilbarco, Inc., No. 2:24-cv-12333, 820 F. Supp. 3d 629 (E.D. Mich. Feb. 10, 2026): Analysis of discovery of AI materials and use of third-party AI tools under the FRCP—relevance, proportionality, work product doctrine—and attorney-client privilege.
• United States v. Heppner, No. 25-cr-00503, 820 F. Supp. 3d 292 (S.D.N.Y. Feb. 17, 2026): In a criminal matter, analysis of discovery of Claude inputs and outputs under the work product doctrine and attorney-client privilege.  Reference to, but not reliance on, Federal Rule of Criminal Procedure 16(b).
• Jeffries v. Harcros Chemicals, Inc., No. 25-2352-KHV-ADM, 2026 WL 820218 (D. Kan. Mar. 25, 2026): Amending a protective order under FRCP 26(c) to cover AI materials.
• Morgan v. V2X, Inc., No. 25-CV-01991-SKC-MDB, 2026 WL 864223 (D. Colo. Mar. 30, 2026): In a matter with a pro se (self-represented) plaintiff, amending a protective order to cover AI materials and analysis of discovery of AI material under FRCP 26(b)’s work product doctrine.
• Conservation Law Foundation, Inc. v. Shell Oil Co., No. 3:21-cv-00933 (D. Conn. May 18, 2026) (ECF No. 970) (order stayed as of July 2026 pending district court review of plaintiff’s objection): Analysis of discovery of expert witness-generated AI information under FRCP 26(b).
• Tate Group Automotive v. Legacy Automotive Capital, No. 25-BC11B-0020, 2026 LX 350370 (Tex. Bus. Ct. June 4, 2026): Analysis of discovery of conversations and litigation materials shared with ChatGPT under Texas Rules of Civil Procedure 192.5(a)(1)’s work product doctrine.
• Assini v Hayward, No. 607683/2024, 2026 LX 334983 (N.Y. Sup. Ct. June 4, 2026): Analysis of discovery of pro se litigant’s AI materials under New York’s Civil Practice Law and Rules § 3101’s work product doctrine.  The court then directed the pro se litigant to New York State Unified Court System’s AI use guidelines (22 NYCRR §161).   

The maxim, “if it ain’t broke, don’t fix it,” comes to mind.  Yet, the above case law should not dissuade legislatures from seriously considering drafting AI-specific laws, or courts and rules committees from adopting AI-specific local rules or guidelines on evidence and procedure.  It should underscore the fact that legislatures and courts do not have to reinvent the wheel:  AI is not above longstanding rules, and instead of adding a whole new statutory chapter, attaching an AI clause or new section to preexisting rules can still be helpful to future disputes. 

While AI may add nuanced and complex wrinkles to most environments it inhabits, in the discovery context, tried and true appears to be the trend. 

Should you have any questions, comments, or concerns about implementation of AI into your organization, or are currently involved in litigation where AI-generated materials are being requested, Womble attorneys have extensive experience in the AI and e-discovery spaces and are uniquely positioned to guide clients through these complex developments.  Reach out to your usual Womble contact and we will put you in touch with the right practitioner for your needs.