ACEDS (Association of Certified E‑Discovery Specialists)

#CaseoftheWeek with Kelly Twigger: Conservation Law Foundation V. Shell Oil

The Meet and Confer podcast examined the Conservation Law Foundation’s lawsuit against Shell Oil, focusing on a May 18, 2026 minute order that ruled AI prompts used by the plaintiff’s expert witness are discoverable under Rule 26. The order, issued by Magistrate Judge Thomas Farish, arrived amid a broader debate over generative‑AI use in litigation and was subsequently stayed pending a district‑court review. The court treated the AI prompts as part of the expert’s methodology, citing prior discovery of technology‑assisted review protocols. It rejected CLF’s three arguments: that prompts are outside discovery, that a Rule 29 agreement covering “notes” shielded them, and that the protective order barred disclosure. The decision aligns with earlier rulings in Heppner, Gilbarco and Morgan, extending AI‑prompt discovery to testifying experts. Judge Farish emphasized that “AI prompts are an aspect of the expert’s method,” echoing language from Machia v. ADP. The expert, Harvard historian Naomi Oreskes, employed OpenAI’s ChatGPT‑4.0/4.5 via a secure Microsoft Azure API to cull millions of Shell documents. The case also coincided with a Florida Supreme Court amendment to Rule 2 of its general practice rules, signaling parallel state‑level moves on AI accountability. For litigators, the ruling underscores the need to explicitly name AI queries, outputs, embeddings, and model parameters in Rule 29 stipulations and protective orders. Failure to do so leaves AI artifacts vulnerable to discovery, potentially reshaping strategies in high‑stakes environmental suits and any matter where experts rely on generative‑AI tools.