Can the Other Side Get My AI Chats in a Nebraska Divorce or Lawsuit?
Sometimes. In a Nebraska divorce, custody case, or other civil lawsuit, your prompts, uploads, and an AI tool's responses are electronically stored information, and the other side can request them the same way it can request texts and emails. A request isn't a right to your entire chat history, and it doesn't establish that anything must be produced or will be admissible in court. Nebraska's rules limit discovery to nonprivileged matter relevant to the case, and a judge can deny or narrow a request through a protective order.
Whether a particular chat is protected depends on what it is and why it was created. A conversation with a chatbot usually isn't covered by attorney-client privilege, and pasting your lawyer's advice into one can put that advice at risk. Nebraska's work-product rule covers material prepared in anticipation of litigation "by or for another party," not only by lawyers, so some material a person created to prepare for a case may support a protection argument. That argument has to be established for the specific material. Using AI neither creates protection nor necessarily defeats it. Courts outside Nebraska have reached different results on different questions. As of October 18, 2026, we have not found a Nebraska appellate decision applying these rules to a litigant's AI conversations.
The most practical point is about deleting. Once a dispute is underway or reasonably foreseeable, don't delete, edit, or "clean up" chats about it, and talk with your lawyer promptly about what to preserve. Nebraska's rule on lost electronic information allows remedies when information that should have been preserved is lost because reasonable preservation steps were not taken and the information cannot be restored or replaced. The rule's adverse-presumption, jury-instruction, dismissal, and default remedies require a finding of intent to deprive another party of the information's use in litigation. Keeping a chat doesn't mean handing it over. It means your lawyer can assess what to produce, what to object to, and what protection to assert, with the record intact.
Maybe you asked ChatGPT to turn months of notes into a timeline of your separation. Maybe you had Claude tone down a text to your co-parent, or you uploaded a pay stub and asked whether a child support number looked right. Those conversations can feel private. In a lawsuit, they can also be records.
That doesn't mean the other side gets to read everything you've ever typed into a chatbot. It means your AI history is subject to the same discovery rules as your texts, emails, and documents, including the same limits and protections. This post walks through how that works in Nebraska state court:
what can be requested
what might be protected
why deleting a chat after a dispute begins can create problems of its own
We wrote it with Nebraska divorce, custody, and paternity cases in mind, along with other civil litigation. Nebraska's civil discovery rules apply in district court. They also apply in the state's other courts to the extent they're consistent with other statutes (Neb. Ct. R. Disc. § 6-301), so they can come up in contested guardianship, conservatorship, and probate matters too. Procedures can differ by type of proceeding, and criminal, juvenile, and federal cases follow different rules in places. Your lawyer can confirm which rules govern yours.
Your AI chats are records, like your texts and emails
Nebraska's discovery rules let a party request "electronically stored information" in another party's "possession, custody, or control" (Neb. Ct. R. Disc. § 6-334(a)). A chat history saved in your account will often fit that description, even though it lives on a company's servers rather than on your phone or laptop. Whether it does in a particular case depends on the facts, including who controls the account.
A request might reach four kinds of material, and each can raise different questions:
What you typed. Prompts and follow-up messages, including any description of what happened.
What you uploaded. Bank statements, emails, photos, texts, or court papers you gave the tool.
What the tool wrote back. Summaries, drafts, and suggestions, including ones you rejected.
Copies you made. Screenshots, exports, and AI-drafted language you pasted into a text, an email, or a document.
These are categories, not automatic production obligations. A request doesn't establish that the material must be produced or that it will be admissible in court.
"Relevant" doesn't mean "everything"
Nebraska allows discovery of "any nonprivileged matter that is relevant to the subject matter involved in the pending action" (§ 6-326(b)(1)). That's broad, but it has edges. A request for every conversation you've ever had with an AI tool isn't automatically proper just because someone served it.
Unlike the federal rule, Nebraska's basic discovery-scope provision does not incorporate proportionality. Nebraska handles disproportionate burden or expense through protective orders instead. A court may deny or limit discovery when the burden or expense outweighs its likely benefit (§ 6-326(d)(2) and comment 2). A court can also, for good cause, protect a party from "annoyance, embarrassment, oppression, or undue burden or expense" (§ 6-326(d)(1)). That doesn't mean embarrassment alone defeats a request; the court looks at the circumstances.
Here's a hypothetical. A parent asks an AI tool to help explain why a weekend exchange went badly. That one conversation might hold:
the parent's account, written the same night
an AI-suggested version of events the parent never adopted
advice the parent ignored
Whether any of it has to be produced depends on relevance, any protections that apply, and the judge's rulings, not on the fact that AI was involved. And the full record can help, because it shows what you actually said, not just a line pulled out of context.
Uploading a document doesn't protect it
Asking a chatbot about a record doesn't change the record. If your bank statements are discoverable, they're discoverable whether or not you uploaded them to an AI tool. An annotated summary you made from those statements, or a related message to your lawyer, may need its own separate analysis.
The Nebraska Supreme Court drew a similar line in a case that had nothing to do with AI. In Roskop Dairy, L.L.C. v. GEA Farm Technologies, Inc., the court upheld a trial court's ruling that certain sealed documents were protected by attorney-client privilege and work product. It noted there was no evidence the requesting party had been denied the "relevant underlying facts or business records" (292 Neb. 148, 183–84, 871 N.W.2d 776 (2015)). Protecting the documents didn't put the underlying facts off-limits. And the facts being available didn't strip the documents of their protection.
Are AI chats privileged?
Usually not, at least not on their own. Nebraska's lawyer-client privilege protects "confidential communications made for the purpose of facilitating the rendition of professional legal services to the client" (Neb. Rev. Stat. § 27-503(2)). A consumer chatbot isn't your lawyer, and typing "this is privileged" into a prompt doesn't change that.
The bigger privilege risk runs the other way. If you paste your lawyer's email or settlement advice into an AI tool, you may be disclosing a privileged communication to a third party. Nebraska treats voluntary disclosure of "any significant part" of a privileged communication as a waiver, unless the disclosure is itself privileged (§ 27-511). We cover that risk in more detail in Can I Upload My Nebraska Lawyer's Emails or Case Documents to an AI Tool?
A tool your lawyer uses as part of your representation raises different questions than a chatbot you use on your own. Even so, your lawyer's approval of a tool is not, by itself, a guarantee of privilege. The question is whether a particular communication meets Nebraska's privilege requirements. That's one reason our engagement agreement addresses AI use. Why Does My Nebraska Lawyer's Retainer Agreement Mention AI Tools Like ChatGPT? explains what we ask before you use AI on your case.
Work product: a protection that might apply
Nebraska's work-product rule covers documents and tangible things "prepared in anticipation of litigation or for trial by or for another party or its representative" (Neb. Ct. R. Disc. § 6-326(b)(3)(A)). The rule refers to a party, not only to an attorney. So material a person prepared for a case may support a work-product argument even if AI helped put it together. Examples include a chronology, a list of questions, or an organized summary of events.
The label and format do not decide the issue. The party claiming protection must establish why the particular material qualifies as litigation preparation. Using AI neither creates protection nor necessarily defeats protection that otherwise applies.
Two more limits matter:
The protection is qualified. The other side can still get ordinary work product by showing two things: that it has substantial need for the material, and that it can't get the substantial equivalent without undue hardship (§ 6-326(b)(3)(A)(ii)). Heightened protection for "mental impressions, conclusions, opinions, or legal theories" applies to those of a party's attorney or other representative (§ 6-326(b)(3)(B)).
Purpose matters. A timeline built to prepare for a threatened custody fight has a stronger argument than a household budget made before anyone was thinking about court. Sending that budget to your lawyer later doesn't change why it was made.
What courts outside Nebraska have said
As of October 18, 2026, we have not found a Nebraska appellate decision applying these rules to a litigant's AI conversations. Courts elsewhere have issued decisions on related questions, but those decisions address different questions:
whether protection arose
whether it was waived
whether a request was timely and proper
whether a protective order restricted uploads
Different outcomes do not necessarily mean the courts disagreed on the same legal question.
A federal criminal case in New York. In United States v. Heppner, Judge Jed Rakoff held that documents a represented criminal defendant created on his own with Claude were neither privileged nor work product. On confidentiality, the court pointed to the AI provider's privacy policy. On work product, it pointed to the fact that defense counsel hadn't directed the AI use. The government had seized the documents under a search warrant, so this wasn't a civil discovery dispute. The decision doesn't make a lawyer's direction a requirement, or a guarantee, in Nebraska (820 F. Supp. 3d 292 (S.D.N.Y. 2026)).
A federal civil case in Michigan. In Warner v. Gilbarco, Inc., a magistrate judge refused to order a self-represented plaintiff to turn over materials about her AI use. The court found the request untimely and the material not relevant or proportional. As an alternative ground, it found the material protected work product. The court said ChatGPT and similar programs "are tools, not persons," and rejected the argument that using one waived work-product protection (820 F. Supp. 3d 629 (E.D. Mich. 2026)).
A federal civil case in Colorado. In Morgan v. V2X, Inc., a magistrate judge agreed that a self-represented plaintiff's AI use doesn't automatically waive work-product protection. The court still ordered him to identify any AI platform he'd used with confidential discovery material, and it added contractual safeguards to the protective order's limits on AI uploads (No. 25-cv-01991-SKC-MDB (D. Colo. Mar. 30, 2026)).
A New York trial court. In Assini v. Hayward, the plaintiffs had served subpoenas on OpenAI for a self-represented defendant's prompts, uploads, and outputs. The court found Morgan's reasoning persuasive and quashed the subpoenas (2026 N.Y. Slip Op. 26086 (Sup. Ct. Nassau County June 4, 2026)).
A copyright case over ChatGPT itself. In Tremblay v. OpenAI, Inc., the plaintiffs' lawyers had tested the product being sued over. A California federal judge protected the lawyers' test prompts and negative results as opinion work product. But the judge required disclosure of the prompts, outputs, and account settings behind the positive results the plaintiffs relied on in their complaint (No. 23-cv-03223-AMO (N.D. Cal. Aug. 8, 2024)).
None of these decisions binds a Nebraska court, and none predicts how a Nebraska judge would treat material a litigant created with AI. They suggest that outcomes tend to turn on who used the tool, why, when, under what terms, and whether anyone later relied on the material. Tremblay also carries a practical lesson: if a party relies on AI-generated material to support its side, expect the other side to ask what's behind it.
A court order may limit what you can upload
Separate from whether your own chats are protected, an order in your case may restrict what you can put into an AI tool.
There's a Nebraska example. A January 2026 stipulated protective order in the U.S. District Court for the District of Nebraska covered the people authorized to receive confidential discovery. Without the producing party's written consent, it barred them from uploading three kinds of material to "open-source" AI platforms:
the confidential discovery itself
"any information extracted therefrom"
any deposition testimony in the case
The bar applied even if the platform promised confidentiality. The same order allowed closed-source tools such as Westlaw and LexisNexis, or others the parties agreed on (McCafferty v. Univ. of Neb. Med. Ctr., No. 8:25CV493, Filing No. 21, ¶ 7 (D. Neb. Jan. 9, 2026)). "Open-source" and "closed-source" are the terms used in that order. Neither label, standing alone, determines whether another product satisfies your case's confidentiality restrictions.
That was one federal case's agreed order, not a statewide rule. But the lesson carries over to state court: a privacy setting doesn't override a court order. Summarizing protected material instead of pasting it may not get around a restriction that covers information drawn from it. If your case has a protective order or confidentiality agreement, read it with your lawyer before uploading anything you received in discovery.
Don't delete: Nebraska's rule on lost electronic information
If you take one thing from this post, make it this: once a dispute is underway or reasonably foreseeable, don't delete, edit, or "clean up" AI chats about it. Talk with your lawyer promptly about what to preserve, and don't wait for that conversation to stop something that's already disappearing.
Nebraska's discovery rules address electronically stored information "that should have been preserved in the anticipation or conduct of litigation" and is lost because a party "failed to take reasonable steps to preserve it" (Neb. Ct. R. Disc. § 6-337(e)). The duty can start before anyone files a lawsuit. The official comment explains that litigation is anticipated "when a reasonable person in the same circumstances would reasonably foresee litigation." It lists examples of events that may trigger the duty, including sending or receiving a demand or preservation letter and making or receiving threats of litigation (§ 6-337, comment 9). Those are examples, not a complete list. No one has to serve a request that mentions ChatGPT first.
The same comment explains that the rule doesn't require keeping every piece of electronic information, only what's relevant to anticipated or ongoing litigation. Preservation should fit your dispute, and the duty continues after a lawyer gets involved.
What can happen if relevant chats are lost
Section 6-337(e) applies when all three of these are true:
electronically stored information that should have been preserved is lost
it was lost because reasonable steps to preserve it weren't taken
it can't be restored or replaced through additional discovery
In that situation, the court's options depend on what it finds:
If the loss prejudiced the other side, the court may order measures "no greater than necessary to cure the prejudice."
Only if the court finds an intent to deprive the other side of the information's use in the litigation may it presume the lost information was unfavorable, instruct a jury that it may or must presume so, or dismiss the case or enter a default judgment.
This rule isn't the only possible consequence of discovery problems. Violating a court order or other discovery obligations can raise separate issues.
An accidental loss isn't automatically fatal to your case. It isn't automatically harmless, either. Telling your lawyer early gives them a chance to look for other copies and explain accurately what happened.
Keeping a chat isn't the same as handing it over
Preservation keeps options open. Your lawyer can then assess what's responsive, what may be protected, and what to object to, and the court can resolve any disagreement. Deleting takes those options away and can turn a discovery question into a dispute about lost information.
A preservation copy should remain unchanged. If you later want to explain or correct something in it, do that separately rather than substituting a new version for the original.
If you've used AI about your case: a checklist
Go through these with your lawyer. The goal is to preserve what's relevant, not to save every conversation you've ever had.
List the tools and accounts. Include chatbots like ChatGPT, Claude, Gemini, and Copilot, plus AI features built into your email, word processor, or phone. Note whether each account is personal, work, or shared.
Note rough dates and topics. Write down which conversations touched your case, and about when they happened.
Write down what you uploaded. Pay special attention to your lawyer's emails, anything you received in discovery, financial records, and anything about your children.
Leave the conversations as they are. Don't delete them, edit them, or keep adding to old threads. Leaving titles and other details unchanged is a sensible precaution too. Ask your lawyer how to export complete conversations, because a cropped screenshot can leave out the context that explains a statement.
Flag automatic deletion immediately. Relevant chats may disappear because of retention settings, temporary-chat features, account closure, or a device change. If that's a risk, contact your lawyer promptly about preservation steps. Do not assume automatic deletion may continue while you wait for advice.
Keep your originals. Hold on to your own notes and the actual documents alongside any AI-assisted versions.
Tell your lawyer about anything that's already gone. Explain what, when, and why, and whether copies might exist somewhere else. Don't ask a chatbot to recreate an old conversation and present the result as the original.
What to expect if the other side asks for your AI chats
A discovery request starts a process. It doesn't end one. Here's what usually comes next:
A deadline. A written response to a document request is generally due 30 days after service. A defending party gets 45 days after being served with the summons or 30 days after the request, whichever is longer. Permitted stipulations and court orders can change that timing (§ 6-334(c)(2)(A)). Send any request to your lawyer right away. Our post on using AI to draft affidavits or answer discovery covers response duties in more detail.
Review first. Your lawyer should review the request and your material before anything is produced.
Specific objections. An objection must explain "with specificity" why a request is objectionable. It must also say whether any responsive materials are being withheld because of it. Grounds left out of a timely objection are waived unless the court excuses the failure for good cause (§ 6-334(c)(2)(C), (C)(i)).
Support for any claim of protection. A party withholding material as privileged or work product must make the claim expressly. It must also describe what's withheld well enough for the other side to assess the claim (§ 6-326(b)(4)). The Nebraska Supreme Court has put the burden on the party claiming protection and has said that "the mere conclusory assertion" of the privilege or doctrine isn't sufficient (Greenwalt v. Wal-Mart Stores, Inc., 253 Neb. 32, 39–41, 567 N.W.2d 560, 566–67 (1997)). Your lawyer can assess and assert protection, but if the other side disagrees, the court decides. Calling an entire AI account privileged is unlikely to work.
Ways to narrow. Your lawyer may negotiate a narrower request, propose agreed redactions, or ask the court for a protective order limiting who can see what's produced. Proposing redactions doesn't by itself authorize removing substantive content without agreement or a court order.
Usually not in the public file. Discovery documents generally aren't filed with the court unless they're relevant to a motion or the court orders them filed (Neb. Ct. R. Pldg. § 6-1105(d)(2)). If a chat may be filed with the court or used at a hearing, discuss confidentiality protections beforehand. Producing material in discovery does not itself determine whether it may later be publicly filed, and confidentiality restrictions do not guarantee sealing.
The judge resolves disputes. The judge resolves discovery disputes under the governing rules. Trial courts generally have broad discretion in managing discovery (Roskop Dairy, 292 Neb. at 168). But whether attorney-client privilege or work-product protection applies is a legal question that an appellate court reviews independently (Greenwalt, 253 Neb. 32).
Questions to ask your lawyer
Has my duty to preserve started? What exactly should I keep, and how?
Is it okay to keep using AI tools for anything connected to my case? Which uses should I avoid?
Is anything in my AI history likely to be responsive to a request? Does any of it have a work-product argument?
Did I put anything privileged, or anything covered by a protective order, into a chat? What should we do about it?
How should I send you my chats securely?
Should we ask the other side about their AI use in discovery?
That last question is worth asking. The same governing discovery framework applies to both sides, even though each side's actual obligations can differ with what it has and the requests it receives.
A note for divorce and custody clients
Many people turn to AI to cool down a message to an ex before sending it. For our divorce and custody clients, we offer in-house co-parenting and divorce coaching at no additional fee. Coaching can help clients work through difficult messages and communication choices. It is not legal advice, and a communication is not automatically privileged simply because it involves a coach. Questions about preserving, producing, or protecting records belong with your attorney. For more on this, see Should I Use AI to Write Messages to My Co-Parent in Nebraska?
Frequently asked questions
Does a paid plan or a "don't train on my data" setting make my chats privileged?
Not by itself. Data privacy and evidentiary privilege are different things. A setting may change how a provider stores or uses your data, but it doesn't turn a chatbot conversation into a privileged communication with your lawyer. In Heppner, the court relied in part on the provider's privacy policy in finding the defendant's AI exchanges weren't confidential. Provider terms vary and change, so the specific product and its current terms matter.
If I delete a chat, is it really gone?
Not necessarily. Deleting a conversation from your screen may not erase every copy, and retention practices vary by provider and product and can change. More importantly, deleting a relevant chat after a dispute is underway or reasonably foreseeable can create problems under Nebraska's preservation rule, so talk with your lawyer first.
Can the other side subpoena the AI company directly?
They may try. Whether a subpoena to an AI provider is proper can depend on jurisdiction, service, the provider's objections, and other legal limits, and the person whose chats are sought may be able to challenge it. A New York trial court quashed subpoenas to OpenAI in Assini, though that decision doesn't set Nebraska procedure. The other side can also simply request chats that are in your possession, custody, or control.
Does sending an old chat to my lawyer make it privileged?
Not automatically. Forwarding a chat to your lawyer doesn't change what it was when you created it. The Heppner court said non-privileged communications aren't "alchemically changed" into privileged ones by being shared with counsel. Your separate message asking your lawyer for legal advice may qualify, but the original chat keeps its own status.
I was representing myself when I used AI. Does that hurt me?
Not necessarily. Nebraska's work-product rule covers material prepared in anticipation of litigation by or for a party. The federal courts in Warner and Morgan recognized that self-represented litigants can assert work-product protection for AI-assisted materials. Protection still isn't automatic. You'd need to show that the specific material qualifies, and representing yourself doesn't shield every chat.
What if the AI wrote something I never said?
Tell your lawyer and keep the full exchange, including what you actually typed, the AI's language, and any correction you made. Authentication only requires evidence that a chat is what its proponent claims it is (Neb. Rev. Stat. § 27-901(1)). It doesn't establish that the AI's statements are true or that the chat satisfies every other admissibility rule. Your lawyer can address what the chat does and doesn't show.
Should I stop using AI tools while my case is pending?
Not necessarily, but assume anything you type about your case could be requested, and ask your lawyer what makes sense for you. Don't upload your lawyer's advice or anything you received in discovery unless your lawyer confirms the proposed use complies with applicable orders, obligations, and confidentiality requirements. And don't delete what you've already created.
Talk with a Nebraska lawyer before you delete or upload
If you've used AI in connection with a dispute, talk with a lawyer before you delete anything or upload anything else. Don't let a pending consultation delay steps to keep relevant records from disappearing. If you already have a lawyer in the case, contact them about any discovery request or preservation question. If you'd like to talk with us about a Nebraska divorce, custody, guardianship, probate, or civil matter, contact Zachary W. Anderson Law to schedule a consultation.
Disclaimer: This article is for general educational purposes and provides general information about Nebraska state-court civil discovery. It is not legal advice for any particular situation. It does not determine whether any specific communication is privileged, protected, discoverable, or admissible. Laws, court rules, court orders, and outcomes depend on the case and may change, so this article may not reflect the most current developments. Reading this article or sending an inquiry does not by itself create an attorney-client relationship or mean the firm has agreed to take action. Do not wait for a response from us to preserve relevant records or address a deadline. Avoid sending sensitive documents through a general website form; ask about a secure method for providing them. Consult a licensed Nebraska attorney about your circumstances.