Behind the prompt: The new frontier of expert witness discovery

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If you’re a litigator, you’re undoubtedly finding that AI is inescapable. You may not be experimenting with it, but nearly everyone else is. Opposing counsel is drafting briefs using the AI features built into their document management system, your clients are researching legal issues with ChatGPT before meeting with you, court clerks are drafting Orders using Microsoft CoPilot, and jurors are conducting factual research on Gemini via their mobile devices.

There’s even a very good chance that employees in your firm are using tools like Claude or Gemini even if your firm hasn’t yet adopted them. According to the 8am 2026 Legal Industry Report, 69% of firm staff rely on general-purpose AI for work-related purposes, even though 54% of law firms haven’t yet approved these tools.

Much like social media, AI usage has become ubiquitous. Understanding it is imperative since AI now impacts every stage of litigation. Absent deep knowledge of the different platforms and their capabilities, you will be unequipped to fully understand the many ways your clients’ cases are affected.

For example, what happens when expert witnesses query an AI chatbot as part of their case preparation? Are the questions asked discoverable?

That very issue was addressed last month in Conservation Law Foundation Inc. v. Shell Oil Company, a federal case in the District Court of Connecticut (Civil No. 3:21-cv-00933 (VDO)).

In this case, the Plaintiffs retained an expert who relied on AI to assist in preparing her expert witness report. During the discovery phase of the case, a disputed issue arose regarding the Plaintiff’s expert witness. Specifically, the Defendants requested access to the prompts the expert witness used when conducting her AI analysis.

The Plaintiffs refused, alleging that the prompts were outside the scope of both discovery under Rule 26(b) and the parties’ Rule 29 discovery agreement. In the alternative, the Plaintiff asserted that its expert witness “did not use ‘prompts,’ but rather only applied ‘search terms,’” and therefore, it had already turned over the requested “search terms.”

In response, the Defendants moved for an order compelling the Plaintiff to produce the materials its expert witness relied on in preparing her report.

First, the Court concluded that the expert’s prompts were discoverable since “methodology is fair ground for discovery…and under the facts of this case, the process by which Dr. Oreskes culled down the defendants’ document production into a subset to be worked with is an aspect of that methodology.”

The Court also determined that the prompts fell within the parties’ Rule 29 discovery agreement. Discovery agreements must be “quite clear,” and the Court reasoned that although the agreement limited production of the expert’s “notes, drafts, or communications needed by, and made during, the report drafting process,” it was unclear whether “AI prompts qualified as ‘notes.’” Thus, the prompts fell within the agreement.

Finally, the court rejected the Plaintiff’s claim that no prompts existed, since there was evidence that in the expert witness’s assistant’s declaration, he had referred to “prompts.”

Accordingly, the Court ruled in favor of the Defendant and ordered the Plaintiff to amend its discovery responses to  include “any artificial intelligence prompts and/or queries used by Dr. Oreskes or her team in the course of producing her expert witness report.”

The lesson to be learned is that AI’s pervasive reach means that litigators can no longer afford to look the other way. If your experts are leveraging these tools to analyze data or draft reports, their digital fingerprints are fair game in discovery. In other words, understanding the mechanics of AI and how your experts use it is no longer optional; it’s a requirement of the job.

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at 8am, the team behind MyCase, LawPay, CasePeer, and DocketWise.She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].