Artificial Intelligence

Are AI prompts, and their generative outputs, discoverable in litigation? A handful of recent district court cases suggest the answer depends on whether the AI prompts and outputs constitute attorney work product.

In Tremblay v. OpenAI, Inc., 2024 WL 3748003 (N.D. Cal. Aug. 8, 2024), the court held that AI prompts written by lawyers can constitute opinion work product when used for litigation-related purposes. The court explained that AI “prompts were queries crafted by counsel and contain counsel’s mental impressions and opinions about how to interrogate [an AI tool], in an effort to vindicate Plaintiffs’ copyrights against the alleged infringements.” In so doing, the court squarely rejected defendant’s argument that AI prompts and outputs only rise to the level of fact work product as opposed to opinion work product. That distinction is important, as opinion work product is offered near-absolute protection from disclosure whereas fact work product is discoverable upon a showing of substantial need for the materials and an inability to secure a substantial equivalent without undue hardship.Continue Reading A Closer Look: The Discoverability of Artificial Intelligence Prompts

On October 20, a California trial court granted summary judgment in favor of defendants in Mach v. Yardi Systems, Inc., rejecting class plaintiffs’ claims that defendants violated California’s antitrust law, the Cartwright Act, through their common use of rental pricing software.  The decision, which relied on “critical” evidence produced…

Continue Reading California Court Rejects First Algorithmic Price Fixing Case to Reach Summary Judgment

On August 15, the Ninth Circuit Court of Appeals affirmed the dismissal of a class action complaint in Gibson v. Cendyn Group, No. 24-3576, rejecting plaintiffs’ arguments that Las Vegas hotels violated Section 1 of the Sherman Act through their common use of revenue management software.  The decision follows…

Continue Reading Ninth Circuit Rejects Vegas Hotel Algorithmic Price Fixing Claims

Last month, a California federal court in Dai v. SAS Institute, No. 4:24-cv-02537 (N.D. Cal. 2025), dismissed a proposed antitrust class action complaint against six nationwide hotel operators alleging that the hotels’ common use of revenue management software to set their room prices amounted to a per se illegal “hub-and-spoke” conspiracy to fix hotel prices in violation of Section 1 of the Sherman Act. Continue Reading California Court Dismisses Hotel Algorithmic Price Fixing Claims

On September 30, a New Jersey federal court dismissed with prejudice an antitrust class action complaint alleging that several Atlantic City hotel operators engaged in a per se illegal “hub-and-spoke” price-fixing conspiracy through their use of software algorithms to set room rental rates.  Cornish-Adebiyi v. Caesars Entertainment, No. 1:23-CV-02536 (D.N.J.).

According to the court, class plaintiffs’ allegations concerning Atlantic City hoteliers suffered from the “same factual deficiencies identified” by a Nevada federal court in Gibson v. Cendyn Group, No. 2:23-cv-00140 (D. Nev.), which rejected price-fixing allegations arising from Las Vegas hotels’ use of the same software.  The court concluded that, in both cases, plaintiffs failed to plausibly allege the existence of unlawful agreements between the hotels at the “rim” of the alleged “hub-and-spoke” price-fixing conspiracy for several reasons.Continue Reading New Jersey Court Dismisses Software Price-Fixing Claims Against Atlantic City Casinos