Morgan v. V2X, Inc.

“AI is forcing litigants and courts to confront difficult questions,” including, “(1) to what extent will work product protections apply to a pro se litigant’s use of AI, and (2) to what extent should a protective order expressly restrict the use of AI?”

The District Court of Colorado found that Rule 26(b)(3) does protect a pro se litigant’s AI-assisted litigation materials, reasoning that the rule protects the litigation preparation of pro se litigants in addition to attorneys, including their “mental impressions, opinions, and theories,” and that it is “entirely reasonable for a person to expect some privacy and confidentiality when interacting with [AI] tools.” The court also observed that these protections were particularly important for pro se litigants, noting that “[a] reading of Rule 26(b)(3) that conditions work product protection over AI materials on the involvement of counsel … would further disadvantage unrepresented litigants.” The court distinguished this case from United States v. Heppner (discussed below), which was a criminal case involving a defendant who acted apart from his lawyer, creating a “gap” between the lawyer and party that did not exist for a pro se litigant.

With respect to the protective order, the court amended the protective order to prohibit the uploading or submission of confidential information to AI tools that lacked certain strict protections. The court observed that the kinds of AI tools available to pro se litigants are generally those with fewer protections, but “[could not] ignore the real risks associated with mainstream tools that persistently collect and store data and could compromise confidentiality.”

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