Lynn Pinker Hurst & Schwegmann partner Chris Schwemann co-authored a commentary in The Texas Lawbook with Ben A. Barnes, partner at Dowd Bennett, on the sharp legal divide that has emerged between federal and state courts regarding whether a client’s solo interactions with AI chatbots are protected from legal discovery. 

In the federal case United States v. Heppner, a judge ordered an executive to hand over his ChatGPT logs to prosecutors, ruling that the work product doctrine only shields an attorney’s mental processes, not independent client preparation. Conversely, in Tate Group Automotive v. Legacy Automotive Capital, the Business Court of Texas protected similar ChatGPT logs. Judge Grant Dorfman ruled that Texas Rule 192.5(a)(1) explicitly covers materials prepared “by or for a party,” thereby shielding the client’s own mental impressions and strategic thinking even without an attorney’s direct involvement. 

The commentary reads, “Texas Rule 192.5(a)(1) defines work product to include “material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party” — by or for the party, not merely the party’s attorney.” 

Read The Texas Lawbook story here.