By Bill Hartzer · Published · How this site is researched
What happened
Fred Assini and First Rehab Lending LLC sued Theresa Hayward, John Recchio and related entities in Nassau County. Recchio, appearing without counsel, had used OpenAI products in connection with the litigation.
The plaintiffs served a subpoena, and then an amended subpoena, on OpenAI OpCo, LLC. They sought Recchio's account records: his prompts, the outputs, material he had uploaded, drafts, and account data. Recchio moved to quash under CPLR 2304.
The request is the natural next step after a party's AI use becomes an issue. If the session record exists on the provider's servers, and the provider is a third party, then the ordinary route to a third party's documents is a subpoena rather than a demand on the opposing party.
What the court did
On June 4, 2026, the court granted the motion to quash. It reasoned that the account contents closely resemble the kind of confidential, strategy-laden iterative work covered by CPLR 3101(d), the New York provision protecting material prepared for litigation.
The court expressly considered United States v. Heppner, 2026 U.S. Dist. LEXIS 32697 (S.D.N.Y. Feb. 17, 2026), in which a federal judge held that a defendant's consumer AI prompts and outputs were neither privileged nor work product. It declined to follow it.
The court ordered the subpoena and the amended subpoena quashed, ordered that OpenAI OpCo, LLC need not comply, denied Recchio's order to show cause, and denied the plaintiffs' cross-motion to so-order the amended subpoena.
Where it stands
The order is dated June 4, 2026 and was entered June 10, 2026. No appeal was located as of September 17, 2026.
Read with Heppner and with the Texas Business Court's order in Tate Group Automotive v. Legacy Automotive Capital, this is now a three-way disagreement among trial courts, with no appellate authority anywhere. An expert should not assume that any one of these answers travels.
The obligation it engaged
The conduct engaged Clause 6 of the Standard, custody and confidentiality. The clause asks the expert to establish, before anything is submitted to a system, what leaves the expert's environment and who retains it. This order is about the second half of that question. The session record sat with the provider, and the plaintiffs went to the provider to get it.
The outcome here was favorable to the user, but the reasoning does not generalize. The court protected the material because it looked like litigation strategy prepared for the case. An expert's prompts are not litigation strategy. They are method, which is what CLF v. Shell held is fair ground for discovery. An expert who reads this order as protection is reading the wrong side of it.
Clause 7, contemporaneous record, is the practical answer to a subpoena of this kind. An expert who holds his own log is in a position to produce it, or to resist producing it, on terms he understands. An expert whose only record sits on a provider's servers has neither.
Sources
- Supreme Court of the State of New York, Nassau County · June 4, 2026
Decision and order, NYSCEF Doc. No. 146 - Damien Charlotin · September 17, 2026
AI discovery cases database
What could not be confirmed
The file name under which the order was obtained misspells the caption. Whether an appeal was taken was not confirmed against the county docket. The specific OpenAI products used are not identified in the order beyond the account records sought.
About this entry
This entry was checked against the primary document listed in the sources. The entry for Assini v. Hayward records conduct and what the tribunal did. It does not characterize a holding and it is not legal advice. Last checked September 17, 2026. More matters like this one are collected under the AI evidence matters. If something here is out of date, write to [email protected].