Court Ruling on AI Prompts in Expert Testimony Sets Precedent

A First Look at AI Discovery Rules

A climate lawsuit in Connecticut is producing what legal experts say is the first court ruling on whether artificial intelligence prompts must be disclosed during litigation discovery. The case involves a petroleum storage facility, but its implications extend far beyond environmental law.

According to E&E News, which first reported the details, a federal magistrate judge ruled in May that Shell could access AI prompts used by an expert witness from the Conservation Law Foundation. The expert, Harvard professor Naomi Oreskes, disclosed using AI to help review Shell's document production in the case. Shell argued it needed to see the prompts to properly cross-examine her methodology and check for potential AI hallucinations or inaccuracies.

Magistrate Judge Thomas Farrish determined that the process an expert uses to narrow down documents for review constitutes part of their methodology, making it fair ground for discovery. A district judge has temporarily stayed that order while the foundation appeals, but the underlying principle has caught the attention of legal practitioners nationwide.

Why It Matters

This ruling signals that courts may treat AI tools differently from traditional research methods like search engines. If the decision stands, law firms will need to preserve AI interaction logs and potentially disclose prompts to opposing counsel, fundamentally changing how attorneys and experts use generative AI in case preparation. The precedent could affect thousands of cases where AI assists in document review, expert analysis, or legal research.

Treating AI as Discoverable Data

Melissa Weberman, who leads Arnold & Porter's eDiscovery & Data Analytics group, told E&E News this represents "the very first to rule on the discoverability of AI data in the context of expert discovery." She noted that while some practitioners use AI "almost like Google," courts appear to view it as a distinct data source comparable to emails or text messages rather than a simple search tool.

The Conservation Law Foundation maintains that AI prompts were only used to "cull a large document universe" and were never considered in forming the expert's opinions. The organization also stated it has confirmed in good faith that no logs of the prompts were preserved. Judge Farrish warned in his order that sanctions could become available if that representation later proves untrue.

Broader Implications for Legal Practice

Law firm Alston & Bird characterized the ruling as "one of the clearest messages yet on AI in litigation," noting it treats AI prompts as part of expert methodology rather than protected drafting material. If upheld, firms may need to establish protocols for preserving AI interactions and determining which uses fall under traditional protections like attorney-client privilege or work product doctrine.

Shell has until June 10 to respond to the foundation's request to maintain the stay. Judge Vernon Oliver will then decide whether to uphold or vacate the magistrate's order. The underlying climate lawsuit, filed in 2021, accuses Shell of failing to prepare its New Haven petroleum terminals for climate-related flooding and storms.

Details of the case and ruling were first reported by E&E News.