Another Federal Court Weighs in on AI Privilege Issues

On March 30, 2026, in Morgan v. V2X, Inc., (D. Colo.; 3/26), a Colorado federal magistrate  held that litigation materials prepared using public AI tools were entitled to protection under Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure. That protects “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” This excerpt from Sheppard Mullin’s blog on the decision summarizes the magistrate’s ruling:

[The magistrate] found that AI-assisted litigation materials prepared via public AI tools are protected under Rule 26(b)(3) as mental impressions and litigation preparation materials, and that using a consumer AI platform does not automatically waive that protection. However, it granted Defendant’s motion to compel disclosure of the name of AI tool(s) used, ruling that such disclosure, in connection with Confidential Information under the protective order, itself does not reveal plaintiff’s mental impressions or legal strategy, and Defendant needs that information to assess whether Confidential Information was compromised.

The blog says that the magistrate also amended an existing protective order to limit the types of AI tools that could be used in preparing Rule 26(b)(3) material. Under the terms of the amended protective order, only those tools under which the tool provider is contractually bound to safeguards at least as protective as those required by the protective order, and those where the provider has contractually committed to permit the party to remove all confidential information upon request could be used.