Warner v. Gilbarco, Inc.

The facts

• 2024Sohyon Warner, representing herself, sues her former employer Gilbarco, Inc. (d/b/a Gilbarco Veeder-Root) and Vontier Corporation in the Eastern District of Michigan, an employment dispute, as reported.
• During discoveryWarner acknowledges using ChatGPT in connection with the lawsuit. As reported, it was a paid account. The defendants question her about it extensively at deposition, “an inordinate amount of questioning,” the court later wrote, without evidence that she uploaded anything marked confidential.
• 23 Dec 2025The defendants move to compel “all documents and information concerning her use of third-party AI tools in connection with this lawsuit” and to override her privilege and work-product objections.
• 5 Feb 2026Motion hearing before Magistrate Judge Patti.
• 10 Feb 2026The order issues (ECF No. 94): the motion to compel is denied as untimely and, alternatively, on the merits.

The holding

Three moves, each in the order's own words.

1. It is work product, and a pro se litigant can claim it. Rule 26(b)(3)(A) protects “documents and tangible things that are prepared in anticipation of litigation or for trial by another party or its representative”, and, citing his own earlier decision, Judge Patti wrote that a “Plaintiff, as a pro se litigant, has a right to assert work product protection over such material.”

2. Using ChatGPT is not a waiver.

“[T]o the extent Defendants argue that Plaintiff waived the work-product protection by using ChatGPT, the work-product waiver has to be a waiver to an adversary or in a way likely to get in an adversary's hand. . . . And ChatGPT (and other generative AI programs) are tools, not persons, even if they may have administrators somewhere in the background.”, ECF No. 94, at 11–12 (CourtListener PDF)

3. The request failed Rule 26 anyway. The court agreed with Warner that the demand sought “her internal analysis and mental impressions” and was “a fishing expedition,” and endorsed her warning that the defendants' theory “would nullify work-product protection in nearly every modern drafting environment, a result no court has endorsed.” Its parting sentence on the topic: “Defendants' preoccupation with Plaintiff's use of AI needs to abate.”

How it differs from Heppner

Warner and United States v. Heppner (S.D.N.Y., written opinion 17 Feb 2026) are routinely paired as a “split.” They differ on four axes, and the axes do the work:

• Doctrine. Heppner was attorney-client privilege, which dies without confidentiality; Warner was work product, where waiver requires disclosure to an adversary, a narrower door.
• Posture. A criminal defendant asserting privilege against the government, versus a civil plaintiff resisting an opponent's fishing expedition.
• Direction. Heppner's materials were created on his own initiative; Warner's materials were her own litigation work as the party herself, the person Rule 26(b)(3) protects.
• The question asked. Heppner: is this communication privileged at all? Warner: must a litigant hand over her drafting process because software touched it? Different questions, compatible answers.

Read together, the rule of the week is not “AI destroys privilege” or “AI is safe.” It is: courts will apply the old elements, confidentiality, counsel, direction, adversary, and the tool's terms and the litigant's posture will decide the case.

What it means

For firms, Warner is the cite for the proposition that AI involvement in drafting does not itself open discovery into the drafting process, while Heppner is the reminder that the protection rests on facts you must be able to prove: what tool, what terms, whose direction, what left the building. Both point at the same discipline: a contemporaneous record of AI use beats a later affidavit reconstructing it.

Sources

• Warner v. Gilbarco, Inc., No. 2:24-cv-12333-GAD-APP, ECF No. 94 (E.D. Mich. 10 Feb 2026), order text (CourtListener PDF); also at 2026 WL 373043
• Docket (CourtListener)
• Paul, Weiss client memorandum (PDF) covering both Warner and Heppner
• Seyfarth Shaw comparison of the two decisions

Related

• AI and attorney-client privilege: the hub page
• AI and the practice of law, including our Heppner analysis
• Zero-egress: how nothing leaves your machine
• Every verified AI standing order · The sanctions record

Checked 4 August 2026. Facts and quotations are from the order itself; the employment-dispute background and the paid-account detail are as reported in the linked analyses. Information, not legal advice.