The AI-Work Product Split, & Deadbeat-Dad Deals=Unenforceable

Three paradoxes feature in this episode:

Paradox 1: You must disclose a bankruptcy stay to the Court of Appeal. What about a bankruptcy that does not create a stay?

Answer: Yes, the disclose-bk-stay rule also means disclose a bk non-stay.

Paradox 2: Deadbeat dad owes $500k. He settles and agrees to pay $250k. How much does he owe?

Answer: Still $500k.

Paradox 3: District court 1 rules AI work product is protected because, among other things, no court has ruled otherwise.

District court 2 then rules otherwise.

Key points:

• Local rules mean what they say: The First District's Local Rule 21 requires "prompt" notice of any bankruptcy that could cause a stay—not just bankruptcies you've confirmed do trigger one. Counsel must explain whether the stay applies, not decide unilaterally that it doesn't and stay silent.
• No stay for debtor-initiated lawsuits: The automatic bankruptcy stay under 11 U.S.C. § 362(a)(1) does not apply to actions brought by the debtor itself. Debtors need to marshal assets through litigation; they don't need protection from their own lawsuits.
• Counsel pled ignorance of Local Rule 21 and reliance on "faulty advice" from bankruptcy counsel—neither excuse worked.
• Courts view violations of notice requirements as a waste of limited judicial time, particularly when discovery occurs days before oral argument.
• Even without sanctions, the published admonishment serves as a lasting professional rebuke.
• The broader ethical duty: appellate lawyers must notify courts of any occurrence that could cause the court to lose or question its jurisdiction.

Transcript

Jeffrey Lewis
Welcome everyone. I am indeed Jeff Lewis.

Tim Kowal
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists, and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast useful, please recommend it to a colleague.

Jeffrey Lewis
And please give us a rating on Apple Podcasts wherever you listen to our show.

Tim Kowal
Okay, we have some cases and tidbits to get to this week, but first, Jeff has a rousing topic that he's going to, I told you, Jeff, you're gonna have to sell me on it first, and hopefully, by way of me, you'll also sell the listeners on how preparing the original Superior Court file as the appellate record is important and interesting.

Jeffrey Lewis
Yeah, this is a topic that only appellate nerds would be interested in. The other day, I am dealing with an appeal, and it's infancy, and my opponent emailed me and says, Jeff, will you sign a stipulation that we can use in original superior court file in lieu of the clerk's transcript? And I thought to myself,

Tim Kowal
Okay, the clerks transcript in my book, that's already the superior court file. You've got the clerk putting her to the task, him or her to the task of getting together all of the filings that have been put together in the case. And sometimes it takes weeks or months for them to do that at not insignificant expense. But the original superior court file is something different from the clerk's transcript.

Jeffrey Lewis
Yeah. Yes, and let me just say in this interaction I had with my opponent, I of course pretended I knew exactly what he was talking about, but in reality, I had no idea what he was talking about. I've never heard of an original Superior Court file or this rule that allows for it, even though there is a checkbox on our appellant's designation of record on appeal form that you and I probably fill one of these out a few times a month. I've never really noticed it, but...

Anyway, so the first thing I did is I didn't call you, I didn't check the Router Group. The first thing I did was call Superfan Fran on the phone. I said, what the hell is the original Superior Court file? She didn't know. So then I looked at Router Group, and here's the deal. The reason I haven't encountered it is that now I'm in Los Angeles, and you're only permitted to use this kind of technique, this alternative to the Clerk's Transcript Art Appendix, when the local rules of the reviewing court permit it. And in fact, the second district where LA is based doesn't have a local rule that allows it. So it's only the first, third, and fourth appellate districts, I guess, that have local rules that permit the clerk of the superior court to take the file, box it up, put it on a cart, and go across Spring Street or wherever to the different courthouse and deliver the file, and then deliver to the parties instruction on how to paginate their own appellate record with, all right, here are the 10 documents that are gonna be in the record. This one's five pages, this one's seven pages, so that everybody's on the same page. Seems like a disaster. I don't know why anyone would ever wanna do that.

Tim Kowal
Does someone have to then physically stamp the page numbers on this original Superior Court file for the appellate record?

Jeffrey Lewis
I don't know, because I've never used one. And ultimately, this guy, in my case, blinked and decided to go with that appendix instead. I was kind of surprised. Yeah. I don't know, but I can tell you this. If everybody has their own version of the record and they're paginating it themselves according to the clerk's direction, I got to think people literally are not be on the same page. You'll be signing to one page, and somebody else will have paginated something differently because of a proof of service or a non-proof of service.

And yeah, I just don't understand what the advantage would be. And the other thing I don't know is if the court's superior court files wheeled over to the Court of Appeal, the superior court no longer has a file. And if there's something that happens pending appeal, let's say judgment enforcement or something like that, I know they have electronic records, but they don't have the actual file. Sometimes originals are important.

I was shocked that this rule exists. was shocked that anybody would ever ask to do it. And I would love it if one of our listeners would email me, jeff@jefflewislaw.com, if they've actually ever seen one of these in the wild, in reality, a Superior Court original file, and that it's actually been used in an appeal.

Tim Kowal
Yeah, it's the term judgment role that comes to mind. I can't say I ever quite understood what the judgment role was, but the same thing with the original record. And yeah, if something happens to the original record, what does that mean? The case never existed.

Jeffrey Lewis
Yeah. Yeah.

Tim Kowal
Okay. Well, we do have some other cases to talk about that might actually happen in your practice. Let's see, the ones I have on deck to talk about concern when a bankruptcy stay may come up in your case, and local rules that may require you to give notice to the Court of Appeal. If you fail to do that, the Court of Appeal will be upset with you. We'll talk about that one and then also where improper discovery non-production can become a quote-unquote irregularity for purposes of a new trial motion. And in this recent case, a denial of a new trial motion was reversed because the improper non-disclosure and discovery was so severe as to constitute an irregularity. And then another interesting case that we'll talk about regarding attempting to compromise on a child support in a rear Child support order can't do it, and we'll talk about that, and maybe maybe some of the incentives and disincentives that could fall out from that, and the all-important question is AI work product protected? There are a couple of recent cases on either side of that Jeff

Jeffrey Lewis
Yeah, they've definitely muddied the waters and made it essentially a gray area. I hope we have time to get to those.

Tim Kowal
Yeah, yeah. Okay, so the first case on the bankruptcy stay in your appeal, Nevilleer versus Putnam. In this second district case, Justice Chao explains at the outset of his opinion that the local rules require that all parties promptly notify us about a bankruptcy that could affect our ability to decide an appeal. But as the opinion goes on to explain in that case, the parties waited until just two days before oral argument to notify the panel that there was a bankruptcy and argued that the bankruptcy state precluded us, precluded the panel from deciding the appeal. But the opinion concludes that, fortunately plaintiffs are not correct because Navalier did not file for bankruptcy and because NAI, the debtor, brought this action.

Jeff, this is a common mistake. think we've we may have talked about this before A debtor needs to be able to file actions to martial assets. So the debtor does not need the bankruptcy protection against the debtor's own lawsuits. So the bankruptcy state does not affect and a Lawsuit that is brought by the debtor, where the debtor is the plaintiff. So that was the case here. So the court of appeal said, you know, there's the bankruptcy state does not affect our jurisdiction here. But the court did still go on to admonish counsel and advise them to learn and follow our local rules in the future. That local rule being Local Rule 21, that, quote, any party to a matter pending before this court who is aware of a bankruptcy that could cause or impose a stay of proceedings in this court must promptly give notice of such bankruptcy.

My question, Jeff, is if there was no bankruptcy that, in this case, would cause a stay, why were the parties required to give notice of

Jeffrey Lewis
Yeah, that's a great question. I've received, over the years, inconsistent treatment by the courts of appeal regarding whose bankruptcy it is. It's like if they see the word bankruptcy, they just err on the side of staying and requiring regular every three month updates about the status of the bankruptcy.

Tim Kowal
Yeah, so the bankruptcy stay rule here under 11 USC 362, the court said, did not apply because the debtor brought the underlying action. Stays don't apply to actions brought by the debtor. But the court went on to explain why the local rules still applied. But local rules required notice of any bankruptcy that could cause a stay, even if counsel believed it wouldn't. Of course, here the counsel believed it would. Because the rule mandates the parties explain whether the stay applies not just notify when it definitely does, actually, that's not a Sorry, I I don't think that's a quote from the case. I think that's just my characterization of it, but that's I thought that was just kind of a classic epistemology question where you know knowledge, you know knowledge is defined as true justified belief Belief so if you know, how can you know? something that is not so. How do you know that there is a stay when there is not a stay? How are you aware of a stay circumstance where you are actually mistaken that there exists a stay circumstance? But I guess the rule here is construed broadly. So Jeff, as you said, there's just kind of an understanding that whenever there's a bankruptcy, alarm bells should be going off in your head that something has stayed somewhere probably. So you should give the court of appeal notice

Jeffrey Lewis
Yeah. Yeah, Yeah.

Tim Kowal
of this bankruptcy, even if it doesn't actually stay your case.

Jeffrey Lewis
Yeah, and by the way, this case was grounded on the first district's local rule about bankruptcies, but I believe there's a broader ethical rule that appellate lawyers all have to notify a court of any occurrence that could cause the court to lose or question its own jurisdiction. I had a similar issue come up very recently in an anti-SLAPP where I lost an anti-SLAPP; we're appealing it, and the other side, the plaintiff, during the pendency of the appeal, filed a request for dismissal, and the clerk entered it, which I was shocked about, given that the trial court loses jurisdiction once there's a pending appeal. And so, our office had to write a letter to the court of appeals saying, hey, the case has been dismissed. We think the case is still valid and viable in terms of the appeal, but the case has been dismissed. I bring this up because I was surprised by how narrowly this decision cast the duty to inform. It's actually a broader duty of anytime the court's jurisdiction or mootness may arise, appellate lawyers have a duty to let the court know.

Tim Kowal
Yeah, one time, Jeff, I got in trouble in the Superior Court after there was an appeal filed on a case involving an injunction. We took the position that it was a mandatory injunction. And given that, we filed a notice of stay in the Superior Court. I think it's required under, arguably required under Rule 2.650, I believe, where there is an action filed in another

case that imposes a stay, and think that's implicitly directed at bankruptcies, but it's not specific to bankruptcy stays, then the counsel is to give notice to the Superior Court. The judge did not like me for that and said, Mr. Kowal, you do not declare a stay; the court declares a stay. I said, well, I'm only giving notice as I believe I'm required to do, but you may have to be careful in

Jeffrey Lewis
Yeah. Hehehehehe

Yeah, that's funny.

Tim Kowal
purporting to give notice of a stay. Anyway.

Jeffrey Lewis
Yeah, I guess if you had said notice of arguable stay, potential stay, you would have gotten you out of hot water.

Tim Kowal
Not a... Yeah, possibly. Although if I recall correctly, the notice of stay form is, I believe it's a mandatory form. So if you tried to create your own pleading form to put some adverts in there, yeah, alleged stay, technically you would violate the use of the mandatory form. Okay, next case, Higginson versus Kia Motors. This is a improper discovery non-production that became an irregularity. So what happened in this case and in both of these cases were our hat tip to Professor Sean Martin and his excellent blog. This is an opinion form from the 4th District Division 1, which is published and it's a 67 page opinion. So I'm going to rely heavily on Professor Martin's summary of the case. So in Higginson's

In Higginson versus Kia Motors, a vehicle purchaser sued Kia under the Song-Beverly Act and for fraud alleging engine defects. Kia responded to discovery requests by falsely verifying that responsive documents, quote, never existed, despite the fact that Kia had produced over 1.8 million pages in similar litigation and having responded to a federal agency investigation on the same defects. The trial court declined.

to issue terminating sanctions and instead gave a jury instruction allowing an adverse inference if jurors found that Kia's conduct was willful. But then the court wound up excluding the only evidence that could prove willfulness. The court of appeals reversed and ordered a new trial. The court of appeal held that Kia's unremitted discovery abuse constituted an irregularity of proceedings. And that deprived the plaintiff of a fair trial.

So here are a few of the, a few interesting takeaways from this opinion. Kia claimed that it found no responsive documents because it searched only for records that mentioned every single symptom in the court-adopted definition of quote unquote engine defects, rather than records that mentioned any one individual symptom. The court didn't like that very much. And this is the trial court who declined to issue terminating sanctions. Here's what that trial court found. It said, although the trial court did not find key as conduct regarding these search terms was quote unquote willful, the trial court did characterize it unfavorably, calling it quote, criminally stupid, a quote, garbage argument, quote, not a fair or reasonable reading, quote, destined to discover no responsive documents.

quote, dead on arrival, and an approach that, quote, makes no sense. So when the Court of Appeals says that the trial court characterized it unfavorably, I think that is what we call understatement. So if you're defending discovery, do not hide behind overly narrow or unreasonable interpretations of search terms because the court won't tolerate it, and it may even trigger sanctions.

Jeffrey Lewis
Yeah. Yeah, man, let me just say it's a small, small, small part of this opinion, but the thing that caught my eye was that the trial court's remedy was to have the jury decide whether a discovery response or hiding documents was willful. And I think that's a terrible idea in terms of asking a jury to make that kind of determination.

You know, in terms of what requests mean and what a response means and what objections were valid, etc. I think juries are ill-equipped to answer that kind of question. I was really surprised the judge framed it in that way, and I'm not surprised by the outcome of this decision.

Tim Kowal
Yeah, well, given the apparent massive scope of the documents that were withheld, I tend to agree that this does seem to fit under the rubric of an irregularity. On that point, one of the defenses that Kia raised is that Kia had produced the responsive documents in other litigation. So it's not like they were trying to engage in some conspiracy against the world to prevent these documents from coming to light anywhere. They just withheld them here, and it wasn't even intentional, supposedly. And in fact, plaintiffs firm had the documents in other case files because they were apparently involved in these other cases, or at least had gotten documents from these other cases in which Kia had produced the documents that were sought here. The plaintiffs just didn't realize their significance until trial preparation.

The trial court faulted the plaintiff at that point for not discovering this circumstance sooner. And the court of appeal did not agree with that and thought that the trial court had improperly shifted the burden onto the plaintiffs to realize that they didn't have, that Kia had not responded truthfully to the document protection requests, rather than putting that burden squarely where it rests on the responding party.

So if you represent a repeat defendant, I think this can come up in multi-district litigation, in issues that surface in repeat litigation. Documents may be produced in one place, and maybe just because of logistics or oversight, they may not be produced in your case. Or maybe you think that, well, you didn't precisely ask for it in this case. For whatever reason, it might not come up in your case.

Jeffrey Lewis
Yeah.

Tim Kowal
Or the documents will not be produced in your case, but you need to implement systems to ensure consistent document production. Because if you produce in one case and not in another case, it can come back to haunt you.

Jeffrey Lewis
Yeah, and this is expensive. not just a new trial, but, you know, ⁓ there's an order to pay for the costs and attorney's fees of the first trial and the appeal. It's an expensive lesson to learn here.

Tim Kowal
Yeah, that's right. It's going to have to go back through another retrial. Okay, another one before we get to ⁓ AI work product. Also from Professor Martin's blog, In re Marriage of Alan. This involved an agreement to compromise child support arrearages. And it was held to be void because there was no quote unquote bonafide dispute about what was owed.

And this involved half a million dollars in child support and arrearages. The father was not a very sympathetic character here. He had been divorced when his wife was still caring for four kids, aged between five and 12 years old. Husband was ordered to pay child support and made some payments, but failed to fully comply with the orders. He was declared a contemptuous litigant.

because he, quote, made no reasonable efforts to support his children. He terminated his job in September of 2000 and moved to Utah to avoid payment. And then in 2002, a bench warrant was issued for his arrest. And so what do you do at that point? Obviously, you move out of the country, which is what he did, and made infrequent payments thereafter.

Two decades later, he decides, I'd like to come back stateside. Let me see if I can strike a deal. Besides, the kids are all grown up, and my wife agrees, figures, you know, I might as well get something rather than nothing and accepts $272,500. Basically, exactly half, I think exactly half of the total, which was approximately 545,000. But.

The court of appeal holds that he still owes the additional quarter million plus. The court of appeal refused, as the trial court did, refused to enforce that settlement. Why? Because there was no bona fide dispute and under family code 3651C1, that statute prohibits retroactive modification of accrued child support, that is overdue child support. So if there is going to be a reduction,

In that award, there must be some bona fide dispute to satisfy the requirements of an accord and satisfaction, and that was not found here. So Father still owes over $272,000.

Jeffrey Lewis
Yeah.

Tim Kowal
What do you think, Jeff? Here was ⁓ Professor Martin's comment on this, is that obviously we understand the motivation for the outcome, but is there a potentially dangerous incentive here that, well, then I'm just going to continue with my existing life and pay nothing at all, which is what he had been doing for the last two decades. And then instead of the wife getting $270,720, she just gets nothing because he's not going to pay over half a million dollars, presumably.

Jeffrey Lewis
will look like taxes, like student loans. Some obligations follow you around forever, even with bankruptcy. And I think the implied idea here by this decision is that the courts will ultimately, at some point, catch up to you. And you don't want to provide any kind of incentive for somebody running out the clock or running out of the country to avoid a moral, sacred obligation of paying child support. So,

Not a whole lot of daylight between Jeff Lewis and this court on this decision here.

Tim Kowal
Yeah, no, I totally agree with that sentiment. I just wonder, it just a matter of human incentives? If a wife would rather, wants the option of getting something rather than nothing, because so often you're left with a paper judgment, and I know this creep is just going to make his assets uncollectible, and at least this was an amount that was enough that it might have been worth it to

Jeffrey Lewis
Yeah.

Tim Kowal
She might have been able to find a judgment collection attorney who would do this on a contingency if his assets were reasonably subject to collection. But in so many of these cases, the amount isn't even enough to attract a contingency attorney and not enough to put your own money behind trying to chase after a deadbeat.

Jeffrey Lewis
Yeah, yeah.

Tim Kowal
One other question on this, I mean, otherwise I would tend to agree with. Actually, as you were talking, Jeff, with those about your comments, if you had a judgment that was for fraud, say which non non-dischargeable and bankruptcy is that subject to a similar rule? ⁓

Jeffrey Lewis
No, support is special. You can, I think one of the implied arguments, or maybe it was made at the trial level, was that, know, support urges is like anything else, and everything's negotiable. And no, there's a family code section that says this is not negotiable, that support of children is different. And yeah, you can't negotiate that away at all.

Tim Kowal
Yeah, I understand that there is that special statute, Family Code Section 3651. But I was wondering why you have to have a statute under the Accord and Satisfaction Rule and a bona fide dispute rule if you have a final judgment that it's not subject to any challenge? Like you and I deal with settlement negotiations pending appeal because hey, this judgment's not final final.

yet because we're going to get it reversed on appeal or it's exposed to some kind of ⁓ risk on the appeal. But once it is final, final, it is not going away. What would be the basis for some new consideration? What new consideration is being offered in order to get an enforceable agreement to pay less than the amount that the judgment stipulates?

Jeffrey Lewis
Thanks

Any time a settlement agreement reduces a judgment, you have recitals in there about forbearing from further collection activities. We're going to release this lien. We're not going to take your firstborn child, all that stuff. Lawyers can always find consideration, especially, yeah.

Tim Kowal
Obviously, the judgment holder is giving something up, but what is the judgment debtor giving up? They already owe that amount, and if they pay half of that amount, they are not giving something that they were not already obliged to give. So what consideration are they giving for an enforceable agreement to ⁓ waive the rest of the judgment?

Jeffrey Lewis
sure. Yeah, they've given up the right to hire an appellate lawyer like you to collaterally attack the order for the rest of its, collaterally attack the judgment for the rest of their lives. Yeah. Yeah. And Chat GPT says, I've got a good case.

Tim Kowal
I won't file my writ of quorum nobis. I was just fixing to file that. It's been 20 years, but there's no limit on it. Okay.

That's right, which

Now we'll get to. So Chat GPT says that I have a valid claim to get this 20-year-old judgment reversed. OK, says Jeff, then I demand that you produce your Chat GPT work product. Can you get the discovery of that ChatGPT work product? Well, we're still in the nascent stages of thrashing out that issue. A recent Eastern District of Michigan federal court found that ChatGPT conversations are protected by the work product doctrine and not discoverable. The case is Warner versus Gilbarco Inc. Earlier this month, in February 2026, Magistrate Judge Patty denied a motion to compel a pro se plaintiffs AI related materials on multiple grounds.

First, the trial court found that the AI materials were litigation work product under rule federal rule of Civil Procedure 26B3A. And if you don't have that rule at the top of your head, it says that ordinarily a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.

etcetera, etcetera, but those materials may be discovered if they are otherwise discoverable under Rule 26B1 and the party shows it has a substantial need for those materials to prepare its case and cannot without undue hardship obtain their substantial equivalent by other means. I think there's a good argument under that section that it was prepared in anticipation of litigation, and the other party doesn't have a substantial need to my ChatGPT work product.

Second, the court found that the materials were irrelevant or at best marginally relevant. And third, the court rejected the argument that using CHAT GPT waived work product protection, holding that work product waiver requires disclosure to an adversary or in a way likely to reach one, and using CHAT GPT does not amount to disclosure to an adversary. What do you think about that ruling, Jeff?

Jeffrey Lewis
I'm reminded of early advisory opinions by state bars and local bars when this thing called the cloud came out, and documents, lawyers were thinking about putting documents in the cloud. And is that enough to secure clients' secrets and maintain their confidentiality? And a lot of these early opinions, when the cloud was still fresh, kind of questioned whether a lawyer could do that or whether the.

client's consent was necessary, et cetera. And anytime you have a new technology like this, there's going to be questioning. But as this technology becomes more widespread and used as often as let's say Westlaw or Lexis, I think you're going to see the pendulum swing in the direction of people should be free to use thinking machines and thinking software without relinquishing important protections such as work product and privilege. But I am going to say this.

With one exception, taking a fantastic memo written by your lawyer, Tim, and feeding that into Chat GPT, I don't know that that still retains attorney-client privilege. In terms of work product, absolutely, but in terms of privilege, there's something about taking a lawyer's final work product, having the client then just feed that to Chat GPT, I don't know. That's where I'm still kind of hung up. How about you, what do you think, Tim?

Tim Kowal
Well, I agree with everything you said. I'd have to think through what you said about feeding it into ChatGPT. What's the practical downside if you're saying that it breaches the privilege, arguably?

Jeffrey Lewis
Yeah, like a waiver of the privilege. Like if you take Tim Cole's fantastic legal research memo and you pin it to a bulletin board at Starbucks, clearly that's a waiver of the privilege, similar to that. But the ability to type in a query and get a response, and with the iterative process of AI and refined questions and answers until you find the answer, I think that should be an activity that is protected.

Certainly, when lawyers do it, and certainly if clients do it at the lawyer's direction or in anticipation of litigation or to help their lawyer understand the case. Like if you have a case involving a lot of data and the client says, instead of giving my lawyer 10,000 documents, I'm going to feed it into ChatGPT and give him a ChatGPT report summarizing the documents. Is that query into Chat GPT and the report from Chat GPT discoverable or was that sent in anticipation of helping the lawyer?

do his lawyer thing. I don't know.

Tim Kowal
Yeah, might be true now that you got me thinking about it. The doctrine, the privilege, might be more well-defined than the work product doctrine. And the privilege has pretty clearly drawn lines. It would extend to a spouse. So if I shared your memo.

As you're my attorney and I share your memo to me with my spouse and that's protected because it's that's another privilege But if I shared it with with my dad, it would not not be for privilege because there's not a father-son privilege so the same way as is a Chat GPT maybe chat you chat you be do is my trusted Colleague to bounce ideas off of but is it more like my spouse? subject to a privilege or is it more like my dad or another trusted person with whom I do not have a privileged communication relationship. Probably more like the latter. So yeah, you may be right. It might waive the privilege.

Jeffrey Lewis
Yeah, I think it's too early to tell. And I think it's premature for courts and bar associations to set into stone and to concrete hard and fast rules until we see where ChatGPT lands. I mean, you think about when you and I were at Clio con in October, where AI was then, where it is now, and where it's going to be next October. It's moving so fast that I don't think it's the

I don't think these decisions can keep up with the technology.

Tim Kowal
Yeah.

By the way, Jeff, I wasn't with you at ClioCon in October, but I must have been living rent-free in your head because that's the second time you've mentioned my being with you. ⁓ But I'll be with you next October. As will Fran. going to have a... Well, maybe we'll CALP remotely via satellite. One other... Okay, to close the loop on

Jeffrey Lewis
All right, yeah.

Yeah, sorry. Yeah, that's right.

Right.

Tim Kowal
Judge Patty added that accepting the defendant's theory would nullify work product production in nearly every modern drafting environment, which I tend to agree with. But then Judge Patty goes on to say that this is a result, quote, no court has endorsed. But that might not be quite accurate because compare US versus Heppner, a Southern District of New York case. I guess this was a week. Maybe Judge Patty's ruling was accurate as of the time it was written, but a week later in US v. Heppner, Judge Rakoff ruled the opposite way on AI privilege. In US v. Heppner, the court found that a criminal defendant's clawed conversations were protected neither by the attorney-client privilege nor the work product doctrine. The key distinction in Heppner was that Heppner acted on his own without counsel's direction, and the court held that work product protection is not meant to shield materials that weren't prepared by or at the behest of counsel. So there's no work product doctrine unless you're an attorney.

Jeffrey Lewis
Yeah. Yeah.

Tim Kowal
What do you think about that, Jeff? Is that the work product doctrine, I mean, guess it is that just for those of us in the guild, pro se litigants don't get any work product protection?

Jeffrey Lewis
Correct, 100%. But if you direct your client, hey, I don't have time to look through 10,000 boxes of information. Will your client craft a prompt that says this, this, and this, and I'm the lawyer, and I'm crafting that, and the client is just following a lawyer's lead? I think in that circumstance, there might be some work product or privilege, but just a person who doesn't enjoy our monopoly of our law license, I don't think they themselves enjoy any work product.

Tim Kowal
Yeah, well, I was just reading the text of Rule 26 again and trying to parse it, and whether it only applies to an attorney. It's again, ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation by or for another party or its representative, including the other party's attorney. So

I think the text of Rule 26 does not distinguish discoverability. It's not a work product statute or rule necessarily. It just makes it not discoverable. Although I guess, as a practical matter, I don't know why it's different. I'd be interested in, I don't have the USV Heppner ruling and, well, I guess I have a link to it here.

But I'd have to look in further to see how it parsed rule 26.

Jeffrey Lewis
Yeah.

Tim Kowal
Okay, well, I guess stay tuned. Okay, Jeff. Yeah. Anything else to share? This is going to wrap us up.

Jeffrey Lewis
I think that'll wrap us up. If you have a real-life experience with the original Superior Court file or an answer to Tim's perplexing question about whether folks who aren't lawyers can enjoy work product protection, go ahead and email us at info@calpodcast.com and look for future episodes about laying the groundwork for a successful appeal.

Tim Kowal
Thanks, see you next time.