Are prompts used in a Generative AI tool by an expert discoverable? In Conservation Law Foundation, Inc. v. Shell Oil Co., the U.S. District Court for the District of Connecticut addressed this novel discovery issue, answering the question: Are AI prompts discoverable? The court granted the defendants’ motion to compel the production of plaintiff’s expert’s Generative AI prompts, holding that AI prompts and queries used by the expert to analyze electronically stored information (ESI) were discoverable because they formed part of the expert’s methodology under Federal Rule of Civil Procedure 26. Rejecting the plaintiff’s argument that the prompts were merely “search terms,” the court concluded that the process by which the expert used AI to identify and analyze relevant documents was subject to discovery.
The court also rejected the plaintiff’s argument that a Rule 29 discovery agreement shielding expert notes and drafts barred production of the AI prompts. Finding that the agreement did not clearly encompass AI-generated materials, the court held that otherwise discoverable information could not be withheld based on an ambiguous discovery carve-out. In addition, because the defendants presented evidence suggesting additional AI prompts may exist, the court ordered the plaintiff to supplement its discovery responses after conducting a diligent search and warned that Rule 37 sanctions could apply if any representation that no further responsive materials existed later proved untrue.
For eDiscovery and litigation teams, this decision highlights the growing importance of treating AI prompts and outputs as part of a defensible discovery workflow. The ruling reinforces that AI prompts, queries, and related materials may be discoverable when they reflect an expert’s methodology, and that parties should carefully address AI-generated content in discovery agreements, preservation strategies, and expert workflows as generative AI becomes increasingly integrated into litigation.
If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. At CODISCOVR, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information (ESI). Reach out to Nicole Gill, Chair and Managing Member of CODISCOVR. With almost a decade of experience, she manages complex and high-profile eDiscovery projects and routinely navigates data and privacy protection laws across many domestic and foreign jurisdictions.
