A Texas court has granted work product protection to AI chats where the party is represented by counsel. This is the first such case. The earlier cases granting protection involved pro se individuals who used AI to prepare for litigation.
As you recall, in Heppner, the judge found the defendant’s AI chats protected by neither attorney-client privilege nor work product, though he left open, on the privilege side, whether things might differ if a lawyer had directed the client to use AI. Since Heppner, I imagine most of you, like me, were waiting for an opinion involving a represented client. We now have one in Tate Group Automotive, LLC v. Legacy Automotive Capital, LLC, No. 25-BC11B-0020 (Tex. Bus. Ct. 11th Div. June 3, 2026) (minute entry).
I want to discuss the posture first. This is a minute entry, not a formal opinion. The court described these as “less formal orders” that are “not intended to be final,” and it told the parties they may seek “an ultimate ruling…particularly if they anticipate exercising their appellate remedies.” Given this, I suggest reading Tate as a signal, not a settled rule.
In Tate, the court reviewed the plaintiff’s ChatGPT conversations in camera. It ordered some pages produced and protected the rest under Tex. R. Civ. P. 192.5(a)(1), which protects material prepared in anticipation of litigation by or for a party. The question is why the judge in Tate reached such a different conclusion from the judge in Heppner.
Work Product Protection: How Different Are the Rules?
When I first heard of Tate, I wondered whether Texas has a very different work product rule from the federal one. There are differences, especially since Texas has its own standalone rule, but for our purposes I do not believe those differences matter. The Texas rule covers material prepared or mental impressions developed in anticipation of litigation or for trial “by or for a party or a party’s representative.” Tex. R. Civ. P. 192.5(a)(1).
The federal rule says much the same, extending protection to materials prepared in anticipation of litigation or for trial “by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3). Both rules separate the lawyer from the party by using the word representative. Both therefore suggest that work product can extend to the party itself under the right circumstances.
Digging into Tate
Let’s take a look at the case. The plaintiff is Tate Group Automotive, LLC. Kris Tate is the individual whose ChatGPT conversations are at issue. The plaintiff withheld those chats “based upon a claim of attorney work product protection.” Defendants argued that “attorney work product protection does not extend to a non-lawyer’s ‘chats’ with an artificial intelligence (‘AI’) tool; or, alternatively, that Kris Tate’s use of AI waived any potentially applicable privilege.” They sought an order compelling production.
The court noted the novel nature of the issue, given that every citation the parties offered was from 2026. One of those cases even called its own ruling “a question of first impression nationwide.” The court “agrees with the analysis and reasoning in the cases cited by Plaintiff.” Those were Warner v. Gilbarco and Morgan v. V2X, Inc., two pro se cases. In particular, the court agreed with the Morgan court’s recognition that “work product protections are typically waived by disclosure to an adversary, or in circumstances that substantially increase the likelihood that an adversary will obtain the materials” (emphasis by the court). Sharing chats with ChatGPT is not disclosure to an adversary, so there was no waiver. The court specifically disagreed with Heppner, the case defendants relied on.
The court did not rest its holding on the fact that Tate is represented. It borrowed its reasoning from Warner and Morgan, both pro se cases, and applied the adversary-waiver rule. That reasoning protects a pro se litigant and a represented one alike. Representation is what makes Tate a factual first. It is not what drove the result.
The court also noted that the parties’ cases are all federal, while “the Texas rules set forth a different standard for protectable attorney work product, and plainly appear on their face to extend that protection to Mr. Tate’s ChatGPT conversations.” However, as I noted, I disagree; the two rules present work product protection in much the same way.
Quoting the rule, the court emphasized “material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party.” Tex. R. Civ. P. 192.5(a)(1) (emphasis by the court). After completing its in camera review, the court ordered certain pages produced because they “do not constitute protectable attorney work product within the meaning of” Rule 192.5(a)(1). The rest were protected.
Protective Orders and AI
The court did one more thing that matters for AI practice. As in Morgan, the court required the plaintiff to “disclose to Defendants all discovery materials or products that it has shared with ChatGPT,” including any materials produced under the protective order. That way the court can “address any potential violations of the Protective Order’s terms if and when they may be shown to have occurred.” The court also encouraged the parties to confer and consider negotiating amendments to the protective order to make clear “whether, how, and to what extent if so, Confidential Information may be shared with any AI tool.” This follows the approach in Morgan, where the protective order addressed confidential information in non-secure AI tools.
Two questions are separated here. One is what a party may put into an AI tool. The other is whether a party must reveal what it put in. Tate is about the second. The protective order discussion is about the first. But it is useful to see how courts are handling protective orders, confidential data, and AI.
Where Does Tate Leave Us on Work Product and AI?
Since this is the first case protecting a represented client’s AI use, it is difficult to say how future cases will be decided. But the reasoning in Tate did not depend on representation, which suggests the adversary-waiver framework is where we should focus. That framework is available to represented and pro se parties alike. It is good to see that work product protection can extend to represented individuals under some circumstances.