Arkansas Federal Court Splits the Difference on AI: No Privilege, But Work Product

Another trial court has weighed in on whether a litigant's AI conversations are protected from discovery. In Whisman v. Rajabi, No. 6:25-CV-06063-SOH-MEF, 2026 U.S. Dist. LEXIS 217896 (W.D. Ark. July 15, 2026) (Ford, M.J.), a pro se plaintiff asked the court to declare that her communications with AI legal-assistance tools, including Microsoft Copilot, were attorney-client privileged or protected work product under Rule 26(b)(3). The court granted the motion, but on only one of those two theories.

On privilege, the answer was no. As the court held, Copilot is neither an attorney nor an attorney's employee. The court reasoned that the conversations were not fully confidential, because Microsoft can access them for purposes such as troubleshooting and improving performance. And, as the court noted, the tool is not designed to give professional advice. As the court put it, "… AI legal assistance tools are not protected by the attorney-client privilege." 

On work product, however, the plaintiff prevailed. Citing Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629, 636-637 (E.D. Mich. Feb. 10, 2026), for the proposition that a pro se litigant may assert work-product protection, the court held that "Accordingly, Plaintiff's AI searches, conversations, and document drafts are protected under the work product doctrine." The pro se litigant's use of Copilot did not waive that protection. The court reasoned that work-product waiver requires disclosure to an adversary, or disclosure likely to reach one, and "AI programs are tools, not people," so the plaintiff's queries were unlikely to fall into an adversary's hands.

Whisman lands squarely on the pro se side of the emerging split, alongside Warner and Morgan v. V2X, Inc., No. 25-cv-01991-SKC-MDB (D. Colo. Mar. 30, 2026). On the other side sit cases involving represented parties who used AI on their own, such as United States v. Heppner, No. 1:25-cr-00503 (S.D.N.Y. Feb. 17, 2026), and Shealy v. Seaside Investments, LLC, No. 2684CV00799-BLS2 (Mass. Super. Ct. June 2026), where courts refused protection. The dividing line remains who directed the AI use. A self-represented litigant is both the party and the advocate, and Rule 26(b)(3) protects a party's own work product. That reasoning does not transfer neatly to a company whose employees open Copilot on their own initiative.

Takeaway: Pro se status is doing heavy lifting in these rulings. A represented party, or a business whose employees use Copilot without counsel's direction, should not assume Whisman gives it the same protection.