If you are currently involved in litigation at any stage and are considering using an AI platform for your preparation, please pause. What you may believe is a helpful tool may just be the reason that key information and documents lose their protections. Courts around the country, at every level, are currently addressing the role of AI in ongoing cases. See how sharing information and documents into AI can impact work-product doctrine.
What is the Work-Product Doctrine?
Generally, the “work-product doctrine” protects:
- the mental impressions of a party’s attorney, including conclusions, opinions, memoranda, notes, summaries, legal research, legal theories, etc., from disclosure to opposing counsel during litigation, if those items or notes were made in preparation for trial.
- in some states, a party’s representative, beyond their attorney, sometimes including their consultant, surety, indemnitor, insurer, or agent.
Overall, the work-product doctrine exists to make sure that the adversarial judicial process is strong, fair, and just. It allows attorneys to work effectively and zealously advocate for their clients, without worry that their own mental impressions and preparatory ideas will be disclosed or discoverable, potentially weakening the case and client that they are so vigorously trying to fight for.
The work-product doctrine, in conjunction with the attorney-client privilege, is a protection that keeps each side’s information “close to their chests.”
Work-product doctrine in Shealy V. Seaside Investments, LLC
Recently, the Superior Court of Massachusetts addressed work-product doctrine and the issue of how it’s affected by an individual’s use of AI. Here is a summary of ongoing litigation in
Shealy v Seaside Investments, LLC (No. 2684CV00799-BLS2):
- Earl Shealy borrowed $2M from Seaside Investments under a convertible promissory note and related loan and note purchase agreement; the loan allowed Seaside to convert the debt into equity if certain events occurred.
- When Shealy attempted to pay off the loan, Seaside allegedly demanded a payoff amount that included required interest exceeding 20% annually, which Shealy argued violated the Massachusetts criminal usury statute. Shealy claimed Seaside refused to accept a lawful payoff, declared him in default, and asserted that it had acquired his ownership interest in his company, 3rd Home.
- During the course of litigation, Shealy emailed various communications and documents to his romantic partner, Debbi Fields, who then put those documents into ChatGPT, to generate litigation materials and communicative documents between the two parties to the litigation.
- After a Motion by the Defendants to compel Shealy to disclose the documents and information created by ChatGPT, Shealy argued that the ChatGPT documents were created in anticipation of litigation and thus qualify for work-product doctrine protection. The Superior Court of Massachusetts disagreed and ruled in favor of the compulsion of those documents.
The Court reasoned that, because Shealy was represented by sophisticated and competent counsel, even though the documents were technically prepared in anticipation of litigation, they were not the product of any impression by an attorney or representative whatsoever. Shealy’s attorney did not know Ms. Fields was using ChatGPT in this manner, and did not direct Shealy in any way to use AI in any manner whatsoever. The Court emphasized that neither Shealy’s romantic partner nor ChatGPT itself qualify as an entity that is protected under the work-product doctrine.
The decision of Shealy and Fields to use ChatGPT in their litigation preparation was theirs to make, and the documents involved lost all protection as a result.
AI in Litigation
Litigation can be extremely difficult to maneuver, even with an attorney. There is a constant whirlwind of information that can become overwhelming. While you may feel that inputting key documents and information into an AI platform could save you and your attorney time and money, it may just be the reason that you end up unsuccessful when you eventually get to the courthouse.
As Massachusetts Superior Court Justice Debra A. Squires-Lee reminds us, “AI is a tool, not a person.” As we move forward in this new era of technological advancement and the use of AI, please think twice, maybe even three times, about what documents and information you put into any AI platform.
At FLB, our litigation attorneys are well aware that litigation is often stressful, presents inherent risks, and that the outcomes can be critically important. Let us (not AI) work diligently and aggressively to find solutions, and we are here to help you assess the risks, manage them, and achieve the most favorable results.
