Are an expert witness’s AI prompts discoverable?
Sometimes, and the law is unsettled. In 2026 one federal court ordered an expert’s generative AI prompts produced as part of her methodology, while another held that prompts and AI assisted drafts are protected but AI generated summaries the expert considered must be produced.
What the courts said in 2026
In Conservation Law Foundation v. Shell Oil Company (D. Conn.), the magistrate judge ordered the plaintiff to produce the generative AI prompts its expert used to prepare her report, treating the AI platform’s role in shaping which documents she reviewed as part of her methodology. An objection to that order was set for argument in November 2026.
In Villanueva v. Las Vegas Metropolitan Police Department (D. Nev.), the district judge on 29 September 2026 refused to order the expert’s whole AI history log produced. The court held that prompts are protected because questions are not facts or data an expert considers and they reveal mental impressions, that AI assisted drafts are protected under Rule 26(b)(4)(B), and that using an AI tool does not waive protection. AI generated case summaries the expert consulted were treated as facts or data considered and had to be produced.
What that means in practice
- Treat anything an AI tool showed you while forming an opinion as likely to be produced.
- Keep research, deposition preparation and drafting separate, and keep records of which is which.
- Expect cross examination on AI use, including any citation an AI tool invented.
- Agree on AI use with retaining counsel early, in the engagement letter and at the Rule 26(f) conference.
An AI policy an expert firm can defend
- Use a tool that answers only from an approved set of case documents, so you can state exactly what it saw.
- Require a page citation on every answer, and read the source before relying on it.
- Keep client files out of public chatbots and out of model training.
- Keep the opinion and the report in the expert’s own hands.
Where KnowledgeXpert fits
KnowledgeXpert Forensics answers only from the documents loaded for a matter, cites every finding to the exhibit and page, and says when something is not in the record. Files stay in your isolated tenant, are never used to train public AI models, and access mirrors the permissions your firm already sets. It does not form or write the opinion.
This page summarizes published reporting on two court orders and is not legal advice. Rules differ by court and change quickly; ask retaining counsel how they apply to your engagement.
Sources
Questions we hear on this
Are an expert witness’s ChatGPT prompts discoverable?
Courts disagree. One federal court in 2026 ordered an expert’s prompts produced as methodology; another held prompts protected but required AI generated summaries the expert considered to be produced.
Are AI assisted draft reports protected?
In Villanueva the court held that Rule 26(b)(4)(B) protects drafts regardless of the form in which they are recorded, including AI assisted drafts.
Does using AI waive work product protection?
The Villanueva court held that it does not, describing the AI tool as an application rather than a person.
How do we lower the risk?
Use a governed tool limited to approved case documents, require page citations, separate research from drafting, and agree on AI use with retaining counsel early.
See what a governed case record looks like.
We load a closed case and show you exactly what the tool saw and where every answer came from.