November 2026

A look at pertinent announcements, updates, and reports that affect discovery.

ChatGPT and Expert Discovery

An expert testified at his deposition that he relied on ChatGPT to help research and draft his expert report. AI use had not been disclosed in response to discovery requests. The expert used ChatGPT to review case law summaries, predict questions he would face at the deposition, and created prompts to analyze and draft portions of the expert report. In reconsideration of the Magistrate Judge's Order, a U.S. District Judge from the District Court of Nevada ruled that the ChatGPT's case law summaries should be produced because those constituted "facts or data" relied upon by the expert, but declined to order disclosure of the expert's own questions and prompts or the deposition outline. The court reasoned that the questions and prompts were mental impressions of the expert and the deposition outline was protected draft material under Federal Rule 26(b)(4)(B). The court also addressed waiver of privilege and held that because ChatGPT was not a person, any privileged information is not waived.

Failure to Disclose: Using ChatGPT to Circumvent the Rules

Forensic examination showed the defendant asked ChatGPT whether Yahoo could recover deleted emails that were under subpoena. The court used the ChatGPT conversation as evidence of intent to deprive the opposing party with discoverable information under Rule 37(e). The court awarded reasonable fees and costs, including attorneys' fees, incurred in litigating the existence of the emails.