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PaperclipPerfector  4d ago (text post)   18926 thread views

Culture War Roundup for the week of February 9, 2026

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I asked an LLM about this and it pointed out that the judge dismisses that work product doctrine applies here:

Third, the work product doctrine does not protect these materials. Defense counsel has represented that the defendant created the AI Documents on his own initiative—not at counsel’s behest or direction. The doctrine shields materials prepared by or for a party’s attorney or representative; it does not protect a layperson’s independent internet research.

And that work product doctrine is governed by rule of civil procedure 26 (b) (3):

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).

"by or for another party" (the other party being the one subject to discovery) clearly includes the party that is the target of the litigation.

The judge doesn't appear to cite anything that contradicts this. He thinks he does, with this bit from In Re Grand Jury Subpoenas:

[does not] shield . . . materials in an attorney’s possession that were prepared neither by the attorney nor his agents.

But that bit doesn't establish that work product applies exclusively to the attorney's work products. Here's the full passage:

The work-product doctrine protects documents and tangible things that are prepared in anticipation of litigation by or for a party, or by or for that party’s representative. … The doctrine does not protect documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of litigation. Nor does it shield from discovery materials in an attorney’s possession that were prepared neither by the attorney nor his agents and that would have been prepared in substantially similar form irrespective of the litigation.

The judge's quote cuts off a crucial "and," which establishes that regular documents that aren't litigation prep that wind up in the attorney's posessesion aren't automatically work product. So the client's conspiracy laid out in Excel that he also transmitted to his lawyer is not work product. But his queries about how much trouble he might be in and what he can do to shield himself very well may be.

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