On May 18, 2026, Magistrate Judge Farrish of the District of Connecticut granted a motion to compel artificial intelligence prompts and/or queries used by a plaintiff’s expert or her team in the course of producing her expert witness report. Conservation L. Found., Inc. v. Shell Oil Co., No. 3:21-cv-00933 (VDO) (D. Conn. May 18, 2026). Judge Farrish’s order appears to be the first order of its kind compelling a party to produce an expert witness’s AI prompts, and this order has potentially broad implications for all litigation should the outcome be adopted widely.
This case has been moving through hotly-contested discovery for several years. As one of many aspects of these discovery disputes, the defendants contended that the plaintiff’s expert used “ChatGPT on a secure server” as part of the process to streamline her document analysis and reach her opinions. As a result, the defendants requested the production of information about the prompts she or her staff entered into the Generative AI platform and the training materials—including documents produced by the Defendants—uploaded to the Generative AI platform. They also raised concerns about document retention, spoliation, and failure to produce AI-related documents as “reliance materials” and “notes.” The plaintiff opposed, arguing that the AI-related prompts and information fell within the scope of a Rule 29 discovery agreement between the parties limiting the scope of discovery into certain expert materials.
After letter briefs and a hearing, Judge Farrish issued an order that largely resolved the issue in the Defendants’ favor. Judge Farrish’s order was a text-only order, with no accompanying written opinion, and was issued after the parties submitted simultaneous letter briefs and the Court held a hearing. The Court provided three reasons for its order to compel.
- First, the Court found that AI prompts used by an expert witness are within the scope of Fed. R. Civ. P. 26(b) because an “expert witness's methodology is fair ground for discovery” and the subject expert culled down the other side’s document production using AI.
- The Court also found the AI prompts were outside a Rule 29 discovery agreement between the parties, because even though the parties had agreed not to take discovery of each other’s “expert notes, drafts, or communications needed by, and made during, the report drafting process,” it was not clear that AI prompts qualified as notes.
- Finally, although the plaintiff argued it had no responsive information to produce because it had already produced “search terms,” the Court nevertheless compelled AI prompts because the subject expert’s assistant had referenced prompts in a declaration.
Whether Judge Farrish’s order becomes the prevailing view on the disclosure of AI prompts used by experts, there are steps litigation teams can take now to prepare.
- Establish AI use parameters with your expert. When engaging your expert, discuss how and when they (including their team) anticipate using AI, including which AI platforms and ensure those platforms meet security requirements for the types of data in your case. Ensure they understand the prompts they use and the documents they use to train the AI platform may be discoverable and discuss any desired limitations on the types of prompts they can use. You may also want to consider including this information in your engagement agreement.
- Implement preservation protocols for AI prompts at the outset of expert engagement. Many AI platforms either do not natively retain prompt history or purge it on a rolling basis. Litigation teams should consider building prompt-preservation requirements into engagement letters, confirming that the expert and any team members can export and retain prompt logs in a defensible format. Failing to set this up early may create downstream spoliation exposure if a court later compels production.
- Consider whether to enter into a more specific Rule 29 discovery agreement. If you do not want your experts’ prompts to be discoverable, enter into a strong Rule 29 agreement that explicitly prevents discovery on this topic. Judge Farrish found that the Rule 29 agreement in his case was not sufficiently clear as to whether the parties had agreed not to take discovery on AI prompts, so any Rule 29 agreement on this topic must be explicit on AI prompts.
- Develop the record to obtain AI use information from opposing experts. If you are interested in knowing how your opponent’s experts have used AI, set up the record to obtain this information. Start by issuing written discovery explicitly seeking this information. Follow-up by asking questions on AI use when deposing your opponent’s experts. Then, if necessary, you will have a record on which to move to compel to obtain additional information.