Pro Se + AI
Sued by a pro se litigant? I'm your woman.
In my practice, I come across pro se litigants quite often.
IDK why, but I seem to attract them.
They too are using AI.
I recently worked against a savvy pro se litigant, clearly using AI, but smart enough to verify her citations / not include fake ones.
I mentioned this to her--noting that her AI might be close to correct, but wasn't quite there, and, maybe, she should rely on it less (or not be so confident in what it was creating for her).
But, did you know that, just days before the Heppner written decision came down, another written decision came down, addressing whether a pro se litigant's use of AI was discoverable?
In Warner v. Gilbarco, the Court reminded us that pro se litigants are covered by the work product doctrine and entitled to its protections.
The decision reads like a somewhat classic pro se case, with fairly typical pro se requests, highlighting common disputes between pro se litigants and represented defendants.
And then, on page 10 of the decision, the Court notes:
"To the extent Defendants seek production of 'all documents and information concerning [plaintiff's] use of third-party AI tools in connection with this lawsuit, as requested in Defendants' discovery requests, this request is denied, as the information is not discoverable."
In support of this decision, the Court merely cites Fed. R. Civ. P. 26(b)(3)(A)--documents and information "prepared in anticipation of litigation or for trial by another party" is not discoverable.
Defendants (as reflected in a related footnote) seemed to be concerned about Plaintiff uploading confidential documents into AI. But, the court noted, there was no evidence (following extensive deposition questioning) that she had done so. Meaning: defendants' discovery request was "not relevant, or, even if marginally relevant, . . . not proportional."
On the next page, the Court then provides a lengthy string cite, reminding folks that pro se litigants are protected by the work-product doctrine.
This went on for nearly two pages, until the Court concluded:
"[T]he Court agrees with Plaintiff that the pursuit of this information is a distraction from the merits of this case, and that Defendants' theory, which is supported by no case law but only a Law360 article posing rhetorical questions, would nullify work-product protection in nearly every modern drafting environment, a result no court has endorsed." (cleaned up).
To me, this reveals two things:
(1) These issues will be decided on a case by case basis and courts will consider the specific facts at issue--a very, very common practice by civil trial judges (in state and federal courts) and
(2) We are likely to continue to see a split, or varying takes, on these issues.
I'm not sure if I see these questions making their way all the way up to SCOTUS (or state supreme Courts), but maybe they should, as privilege will evolve as our tech evolves.