The Heppner And Warner Rulings: Hobgoblin Consistency Or An Application Of Principle? - Above the Law

"The court instead focused on the work product privilege, noting first that a pro se plaintiff can assert a work product privilege under case law in that circuit. The court then stated that a waiver has to be a waiver to an adversary or result in the likelihood that the material in question will get in an adversary's hands."

"While disclosure to any third party would waive the attorney-client privilege, said the court, that's not so for waiver of the work product privilege. Warner had no lawyer to go to to formulate strategy and courts often give pro se parties a little leeway for obvious reasons."

Two federal district court rulings on the same day appeared contradictory regarding whether materials created with AI tools are discoverable. U.S. v. Heppner established that materials to and from publicly facing GenAI tools are discoverable. Warner v. Gilbarco, involving a pro se plaintiff using unspecified AI tools, reached a contrary result by denying defendants' discovery request. However, the cases are not necessarily inconsistent. The Warner court's primary basis for denial was that the materials were not relevant or proportional to the case, which should have ended the analysis. The court also addressed work product privilege, distinguishing between attorney-client privilege waiver through third-party disclosure and work product privilege waiver, which requires disclosure to an adversary or likelihood of adversary access. The pro se status of the Warner plaintiff also influenced the court's approach.

Read at Above the Law