Pro Se Prompts Privileged – N.Y. Court followed Morgan and Warner; Distinguished Heppner

A New York court held that an unrepresented litigant’s use of AI was protected work product. It addressed subpoenas directed to OpenAI seeking a pro se litigant’s use of AI.

Unrepresented defendant, John Recchio, challenged Plaintiff’s Amended Subpoena to OpenAI OpCo, LLC, seeking in part:

2. All prompts, queries, uploaded documents, and corresponding outputs specifically referencing: (a) Plaintiffs Fred Assini or Jason Napolitano; (b) Alpha Tech Lending LLC; (c) the claims or defenses asserted in this action; or (d) filings, motions, or correspondence generated for use in this action” as associated with the accounts registered to defendant Recchio.

Plaintiff argued that the “materials squarely relate to evidence and Recchio’s factual assertions regarding the claims and defenses at issue in this litigation.” Assini v. Hayward, 261 N.Y.S.3d 915, 2026 WL 1677232 (Sup.Ct. Nassau Co. Jun. 4, 2026).  It relied on U.S. v. Heppner, 820 F.Supp.3d 292 (S.D.N.Y. 2026), to support its discovery request.

In response, “defendant Recchio contends that the Subpoena and Amended Subpoena should be quashed, and a protective order issued, as the materials sought are privileged as ‘litigation-preparation.’” He (and/or the court) relied on Morgan v. V2X, Inc., 2026 WL 864223 (D. Col. Mar. 30, 2026), to oppose the discovery.

New York provides fairly standard protections for privilege and work product. Id. at *2-3. Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR § 3101[d]).

The Assini court wrote: “The Morgan Court directly addressed Heppner in its Decision and found that [Heppner] was not binding as Heppner involved a criminal matter and not a civil matter.”

The Assini court added:

The Morgan court further found that, “[h]ere, like in Warner v. Gilbarco, Inc., 820 F.Supp.3d 629 (E.D. Mich. 2026), Plaintiff can assert work product protections in connection with his AI use. It is true that AI systems like ChatGPT, Claude, Gemini, and others widely available to the public, collect user data for training and other purposes. But in this Court’s estimation, that does not eliminate all expectations of privacy or automatically waive protections.” 2026 WL 864223, *5, 2026 U.S. Dist. LEXIS 67939, *10-11 [Dist. Colorado March 30, 2026].

The Court finds the rationale presented in Morgan persuasive.

Accordingly, the Subpoena and Amended Subpoena shall be quashed.

A request to approve settlement was filed on October 8, 2026.

For more information on this topic, please visit:

• Defendant’s Discovery Request Relating to Plaintiff’s Alleged Use of A.I. is Denied
• I. Privilege, Heppner, and How Did the Court Learn About the Absence of Certain Attorney-Client Communications Between Mr. Heppner and His Attorneys?
• I. Documents Deemed Not Privileged
• “Two Courts, Two Answers: When Does Using AI Waive Privilege?”
• Discovery Permitted About Development and Use of AI Program
• Does OpenAI Provide Legal Assistance?
• Important A.I. Work Product and Protective Order Decision
• Deponent’s Use of A.I. to Answer Deposition Questions Barred; ChatGPT Was Not an Attorney
• Tara Emory and Maura Grossman Address Protection of Attorney Prompts in “GenAI TAR”
• Upload of Documents to Anthropic Products Leads to Denial of Motion to Seal Record

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.