After the Shell Ruling: Rule 26 Now Reaches AI Prompts
Federal magistrate rules in Conservation Law Foundation v. Shell that AI prompts are discoverable under Rule 26. What testifying experts and expert-witness firms should do this week.
Ken Burcham, Founder, AICS
8/13/20262 min read
The Development
In Conservation Law Foundation, Inc. v. Shell Oil Company (D. Conn. May 18, 2026), Magistrate Judge Thomas Farrish ordered the plaintiff to produce the generative AI prompts its testifying expert used in preparing her report. The court treated the prompts as part of the expert’s methodology under Federal Rule of Civil Procedure 26(b), rejecting the argument that they were protected drafting material analogous to an expert’s private notes. Coverage since the ruling has come from Mayer Brown, Spencer Fane, Arnold & Porter, Alston & Bird, Bowman & Brooke, Dechert, and the Volokh Conspiracy at Reason, among others.
Why It Matters
Every testifying expert and every firm engaging one now needs a defensible, documented answer to how AI was and was not used in preparing a given work product. That answer needs to exist before the discovery request arrives — reconstruction after the fact is orders of magnitude harder than contemporaneous capture. Firms whose experts use AI as part of their analytical process — for document review, summarization, translation, quantitative analysis, or any adjacent function — should assume this ruling will be cited in motions across circuits within the next six months.
The immediate operational implications: prompt logs and interaction records should be preserved going forward; the firm’s methodology for how experts use AI should be documented in writing, not just in individual expert practice; and firms should consider what their answer would be if opposing counsel served a Rule 26 request for AI-use documentation next month.
Our Take
The ruling exposes a documentation gap that most firms have, and it exposes it in a form that will be settled through several years of subsequent litigation. Firms that address the gap on their own timeline — building the documentation practice now — will be in a materially stronger position than firms that wait to be forced into it by their own version of the Conservation Law Foundation motion.
The specific problem is not novel. Adversarial scrutiny of professional methodology has been solved in adjacent practice areas — mortgage due diligence, forensic accounting, SOC attestation — for decades. The pattern that works is a documented methodology applied consistently across engagements, contemporaneous workpapers, tiered classification of findings, independent peer or third-party review, and a visible attestation artifact that recipients can independently verify. All of these translate to the AI-use disclosure question with modest adaptation.
For AICS’s more detailed analysis of what expert-witness firms should think about doing in response to the Shell ruling, see the companion long-form piece on LinkedIn.
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