Conservation Law Foundation v. Shell (expert AI prompts)

What happened

The Conservation Law Foundation sued Shell Oil Company and related defendants in the District of Connecticut. The foundation's expert, Dr. Naomi Oreskes, is a historian of climate change science. Her report was served in May 2025 and she was deposed in September 2025.

According to reporting on the record, Dr. Oreskes and a research assistant used a commercially available generative AI system to filter Shell's document production down to a subset of potentially relevant documents. Dechert describes the system as GPT-4o running on a private Microsoft Azure deployment. The report disclosed the search terms and their frequencies. It did not disclose the prompts. Shell moved to compel them.

The foundation resisted on three grounds. It argued that the prompts fell outside the scope of discovery under Rule 26. It argued that the parties had agreed not to take discovery of each other's "expert notes, drafts, or communications needed by, and made during, the report drafting process," and that the prompts were notes. And it argued that it had already produced the search terms, which were what mattered.

What the court did

On May 18, 2026, Magistrate Judge Thomas O. Farrish granted the motion to compel. The order states that "an expert witness's methodology is fair ground for discovery" and that, on these facts, the process by which Dr. Oreskes culled the defendants' production into a working subset "is an aspect of that methodology."

The court did not read the parties' agreement as covering the prompts. As reproduced by the Volokh Conspiracy, the order found that the point was "not so obvious as to be 'quite clear,'" and so the agreement was not a sound basis for denying discovery otherwise within Rule 26(b).

The operative direction reads: the foundation is ordered "to revise its responses to any Rule 33 interrogatories or Rule 34 requests for production that call for disclosure of any artificial intelligence prompts and/or queries used by Dr. Oreskes or her team in the course of producing her expert witness report. If, after a diligent search, CLF determines that no additional responsive materials exist, it shall say so in its response, signed by the appropriate person under Rule 33 or 34. Rule 37(b) sanctions may then become available to the defendants if that representation is later revealed to be untrue."

One detail of the record deserves attention. The foundation had represented that no such materials existed. What gave the court a reason to order a further search anyway was a reference to a "prompt" in the declaration of Dr. Oreskes's research assistant, Dr. Alexander Kaurov, filed at Dkt. 941-4. A single word in a supporting declaration reopened the question.

Where it stands

The foundation moved for an emergency stay and filed its objection under 28 U.S.C. section 636(b)(1)(A) and Rule 72(a) on June 1, 2026 (Dkt. 974 and 975), with a corrected filing the following day (Dkt. 976). On June 3, 2026, District Judge Vernon D. Oliver ordered that "The Order at ECF No. 970 is stayed pending the Court's consideration of the Plaintiff's objection thereto and accompanying motion to stay."

The defendants responded on June 15, 2026 (Dkt. 980 and 981). The foundation replied on the stay motion on June 24 and to the opposition to the objection on June 29, 2026. Briefing has been complete since then.

As of September 17, 2026 the district judge has not ruled. Nothing on the docket between June 29 and September 17, 2026 touches the objection; the intervening activity concerns expert preclusion motions, status conferences and summary judgment, with a telephonic pre-filing conference set for November 23, 2026. The magistrate judge's order is therefore still not in effect, and it may be modified or set aside.

A second route to the same material has since appeared. In Fry v. Fry a court required, by order in advance rather than on a motion to compel, that a party disclose which systems were used and list every prompt and document entered into them. Where this matter reached an expert's prompts through discovery, that one reached a party's prompts through a filing requirement.

The obligation it engaged

The dispute turns on Clause 5 of the Standard, reproducible analysis. Culling a production with a system is part of the method. If the instructions given to the system are not preserved, no one can rerun the culling or test what it left out, and the governing test fails at its first step: an examiner working from the primary sources cannot reproduce which documents the expert chose to read.

Clause 7, contemporaneous record, is what makes a request like Shell's easy to answer. An expert who logs each prompt as it is used can produce the log. An expert who did not has to reconstruct it under an order carrying sanctions exposure. Clause 8, disclosure, is also engaged. The report disclosed the search terms but not the prompts, and the gap between the two became the discovery fight. Whatever the district judge decides on the objection, the safer course for an expert is to treat prompts as part of the method from the start.

Sources

• U.S. District Court, D. Conn. (copy of the CourtListener PDF) · May 18, 2026
  Order granting motion to compel, ECF 970 (May 18, 2026)
• Mayer Brown · June 10, 2026
  Court Orders Disclosure of Expert Witness's AI Prompts: What Litigators Need to Know
• Dechert · June 30, 2026
  Magistrate Judge Orders Production of AI Prompts Used by Expert Witness
• eDiscovery Today (citing Law360) · June 12, 2026
  Enviro Group Can't Delay Handing Over AI Prompts, Shell Contends

What could not be confirmed

The order itself does not name the AI system; the GPT-4o and Azure description is Dechert's. Part of the order's reasoning is quoted from the Volokh Conspiracy's reproduction rather than from the copy of the order that was opened. The docket activity in this entry is taken from the public docket rather than from the individual filings, which were not opened.