The Court Wants Your Prompts
A federal judge recently ordered an expert witness to turn over her AI prompts. Not her report. Not her notes. Her prompts.
Conservation Law Foundation [CLF] an environmental nonprofit, is suing Shell and related companies over a fuel terminal it claims isn't adequately prepared for severe weather and climate change. According to the report of CLF’s expert, she used AI for two analytical tasks:
“To examine Shell’s relations with a set of think tanks…”
To observe how often specific terms appeared in Shell documents
Defendants requested the prompts the expert used in her AI analysis, along with the related outputs. CLF protested, arguing that the AI prompts were not within the scope of discovery. CLF also claimed no prompts existed, only "search terms," but the expert's own assistant had referenced "prompts" in a sworn declaration. The court rejected both arguments, stating:
"An expert witness's methodology is fair ground for discovery . . . and under the facts of this case, the process by which [the expert] culled down the defendants' document production into a subset to be worked with is an aspect of that methodology."
The court ordered CLF to produce "any artificial intelligence prompts and/or queries used by [the expert] or her team in the course of producing her expert witness report." CLF has since objected, and the court has paused enforcement while the challenge is decided. It's not likely to succeed, though. It's like overturning a call in baseball: the ruling stands unless it was clearly erroneous or contrary to law.
My big takeaway: AI is an enormously powerful tool that can help us perform better, more thorough recons with fewer mistakes. But we're entering an era where our prompts will often be discoverable, so keep them professional and tidy. The odds of them being read to a jury just got a lot higher.
Thanks for reading, keep exploring!
Lou Peck
Lightpoint | JSForensics
P.S. Been there, buddy.