Consistent with the above, courts have recently been grappling with attorneys’ use of AI generative tools and whether prompts and outputs from those tools can be protected as privileged.  The cases to date have underscored the need to evaluate these issues on a case-by-case basis, and for attorneys to proceed with caution when using these resources.  For example, in Tremblay v. Openai, Inc., No. 23-cv-03223-AMO, 2024 U.S. Dist. LEXIS 141362 (N.D. Cal. Aug. 8, 2024), the federal district judge for the U.S. District Court for the Northern District of California disagreed with the federal magistrate, and instead held that account information, prompts, and outputs that counsel for plaintiff used and received from ChatGPT as a part of their pre-suit investigation of possible copyright infringement claims constituted opinion work product because the ChatGPT prompts were queries crafted by counsel and contained counsel's mental impressions and opinions about how to interrogate ChatGPT, in an effort to vindicate the plaintiffs' copyrights against the alleged infringements.  Even where the plaintiff had produced certain prompts and outputs as a part of the litigation, the court concluded that there had been no subject matter waiver because opinion work product, unlike fact work product, is discoverable by waiver only where mental impressions are at issue in a case and the need for the material is compelling.  Because the plaintiff had failed to meet this heightened waiver standard, the court ruled that they were protected from discovery.