quick hit
- A Texas judge has ruled that conversations generated by generative AI tools can be protected as a lawyer’s copyrighted work under Texas law, unlike a recent landmark federal case.
- This decision suggests that using AI does not automatically waive privilege, as such conversations are unlikely to be disclosed to an adversary.
- Employers may want to monitor employee interactions with AI to manage potential risks to attorney-client privilege and confidentiality.
On June 3, 2026, Judge Grant Dorfman of the Texas Business Court, Division 11, issued minutes. Tate Group Automotive LLC v. Legacy Automotive Capital LLC Ruling that non-lawyer AI conversations prepared in anticipation of litigation may qualify as privileged work under Texas procedural rules.
Judge Dorfman suggested that AI conversations may be subject to work product protection under Texas law, citing the Texas Rules of Civil Procedure, which states that a work product is “a physical thing or mental impression made for litigation or trial.” by or for a party…. ” (Emphasis in the decision.) In other words, work product is not limited to materials prepared by attorneys, but may also include materials prepared by the president of a corporate entity. Tate,or professional Litigants.
To this effect, Judge Dorfman cited with approval two recent district court opinions regarding the use of AI by self-proclaimed litigants in employment litigation. They are the February 2026 decision of the U.S. District Court for the Eastern District of Michigan and the March 2026 decision of the U.S. District Court for the District of Colorado. Morgan v. V2X Inc. Citing these opinions, Judge Dorfman appeared to support the court’s rationale that work product protection is waived only if the material is disclosed to the court. adversaryor in any way substantially likely to arrive at it. Therefore, this decision suggests that the use of AI tools does not fall under the terms of the waiver.
What is noteworthy is that the judge “disagree”[d]” and America vs. Heppnera landmark lawsuit filed in February 2026 in the United States District Court for the Southern District of New York. This case held that interactions between a criminal defendant and a publicly available generative AI platform are not protected by the attorney-client privilege or the work product doctrine. In this case, a federal court found that entering confidential information into a third-party consumer AI platform constituted voluntary disclosure beyond the attorney-client relationship.
However, Judge Dorfman said, “The Texas rules clearly set a different standard for protectable attorney work and extend that protection to plaintiffs’ conversations with AI tools.”
Still, the judge ultimately said the privilege was limited to this extent and ordered the plaintiffs to turn over “any discovery materials or products they shared” with the AI tool, including materials produced under the protective order. The judge also recommended that the parties discuss amending the confidentiality order to “clarify whether and to what extent sensitive information can be shared with AI tools and other large-scale language modeling systems.”
Important points
The Texas Business Court’s decision comes as courts grapple with and reach different conclusions about how to treat privilege and party interactions using publicly available generative AI platforms. As the use of generative AI tools becomes more widespread, these problems are likely to increase further.
While not a complete opinion on the merits, Judge Dorfman’s minutes suggest that Texas courts may interpret work product protections for AI conversations more flexibly, even when non-lawyer parties are involved. Specifically, Judge Dorfman noted that Texas’ rules of civil procedure protect party materials and impressions created in anticipation of litigation. The judge further suggested that conversations using publicly available AI tools do not necessarily waive privilege, as they may be substantially less likely to be detected by an adversary.
Employers may want to see the extent to which their employees are using AI tools to make employment-related decisions and other decisions in response to employee complaints or threats of litigation. Such materials may or may not be subject to the attorney-client privilege or work product doctrine, and disclosure of confidential information to AI tools by non-attorneys may constitute a waiver of privilege.
Previous case law suggests that the use of public AI tools, as opposed to company-based AI tools, increases the risk that individuals will be deemed to have waived privilege. Additionally, beyond waiver concerns, employers may need to evaluate whether the AI tools they generate qualify as storable electronically stored information (ESI) when issuing a litigation hold. This is a rapidly evolving issue with emerging technology, so employers may need to stay abreast of new trends.
Ogletree Deakins’ Technology Practice Group, Whistleblowing and Ethics Practice Group, and Workplace Investigations and Organizational Evaluations Practice Group continue to monitor developments and provide updates on employment law, ethics/whistleblower, technology, and workplace investigations and organizational evaluations as additional information becomes available.
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