Ben Barnes

Earlier this year, a financial executive opened an AI chatbot to think through his legal exposure before calling his lawyers, then watched a federal judge hand all 31 of those documents to prosecutors. The lesson looked clear: A strategy session typed into a consumer AI tool is not privileged, not work product and fully discoverable. A Texas court has now complicated that lesson.

Earlier this year, a financial executive opened an AI chatbot to think through his legal exposure before calling his lawyers, then watched a federal judge hand all 31 of those documents to prosecutors. The lesson looked clear: A strategy session typed into a consumer AI tool is not privileged, not work product and fully discoverable. A Texas court has now complicated that lesson.

After a highly successful, productive and largely uncontroversial first 18 months, the burgeoning Texas Business Court recently faced its first constitutional challenge. In Brown v. Exxon Mobil Corp., former Exxon executive Artis Brown — represented by prominent plaintiffs’ lawyer Tony Buzbee — asked the Business Court to declare itself unconstitutional. He took issue with the court’s (1) geographic scope and (2) method of judicial selection. But those complaints aren’t novel.