Supreme Court, Nassau County

Decided on June 4, 2026

Index No. 607683/2024

Rhonda E. Fischer, J.

[*1]

The following papers were read on these motions:

Mot. Seq. No. 005: NYSCEF Doc. Nos.: 110-1115, 125-133

Mot. Seq. No. 006: NYSCEF Doc. Nos.: 117-123, 125-141

Mot. Seq. No. 007: NYSCEF Doc. Nos.: 125-141

Defendant, John Recchio, pro se, moves (mot. seq. no. 005) for an Order: 1. quashing Plaintiffs' subpoena, as amended, directed to OpenAI OpCo, LLC in its entirety; 2. alternatively, modifying and conditioning the subpoena so that no production may occur unless Plaintiffs first identify with particularity each specific statement, publication, date, recipient, filing, and theory of relevance allegedly supporting the request; 3. issuing a protective order prohibiting disclosure of Defendant's private legal research, litigation-preparation materials, draft filings, prompts, outputs, uploads, mental impressions, strategy, privileged materials, attorney work product, personal information, and unrelated account data; 4. staying compliance with the subpoena pending determination of this motion and any further order of the Court; 5. awarding costs, fees, sanctions, or such other relief as the Court deems appropriate based upon Plaintiffs' pursuit of facially overbroad and improper discovery after notice of its defects; and 6. granting such other and further relief as the Court deems just and proper.

Defendant John Recchio, pro se, also moves by order to show cause (mot. seq. no. 006) for an Order: 1. immediately staying compliance with Plaintiffs' subpoena and amended subpoena directed to OpenAI OpCo, LLC pending hearing and determination of this application and Defendant's motion to quash and for protective relief; 2. quashing Plaintiffs' OpenAI subpoena and amended subpoena in their entirety; 3. alternatively, modifying the subpoena to prohibit production of prompts, inputs, uploaded documents, outputs, drafts, legal research, litigation-preparation materials, strategy, mental impressions, private account data, metadata, unrelated personal materials, and any materials not tied to a specific identified statement, publication, date, recipient, and non-privileged evidentiary issue; 4. prohibiting Plaintiffs and Plaintiffs' counsel from seeking, receiving, reviewing, using, disclosing, or disseminating any OpenAI/ChatGPT account materials absent further order of this Court; 5. requiring Plaintiffs to immediately serve OpenAI, CT Corporation, and all parties with any stay, withdrawal notice, or order entered by this Court; 6. requiring Plaintiffs to identify any subpoenaed materials already requested, received, viewed, stored, copied, forwarded, or transmitted, and to certify whether any production has occurred; 7. awarding Defendant costs, expenses, sanctions, and the maximum relief available under 22 NYCRR 130-1.1 and applicable law; 8. precluding Plaintiffs from pursuing further affirmative discovery, including subpoenas, until Plaintiffs comply with Court-ordered financial discovery; 9. granting such other and further relief as the Court deems just and proper.

Plaintiff opposes the applications, and cross-moves (mot. seq. no. 007) for an Order: 1. Denying Defendant John Recchio's motion to quash the Amended Subpoena served upon OpenAI OpCo, LLC; 2. Denying Defendant John Recchio's application for a stay of the Amended Subpoena; 3. So-ordering the Amended Subpoena served upon OpenAI OpCo, LLC; 4. Restricting Defendant John Recchio from filing further motions, applications, orders to show cause, letters, or other submissions in this action absent prior leave of Court; 5. Directing that additional status conferences, at such interval as the Court deems appropriate, be scheduled to [*2]address all disputes, rather than through motion practice or other communications to the Court or counsel; 6. Sanctioning Recchio and awarding Plaintiffs attorneys' fees and expenses incurred in opposing Recchio's motion to quash and Order to Show Cause, in filing this application, and in responding to the campaign of harassing communications and frivolous filings described herein; and 7. Granting such other and further relief as the Court deems just and proper.

Defendant John Recchio opposes plaintiff's cross-motion.

Initially, it must be noted that the Order to Show Cause directed service upon the plaintiff and co-defendants by NYSCEF and e-mail, as well as upon non-party OpenAI OpCo, LLC via overnight mail with tracking. Movant has failed to file any Affidavits of Service demonstrating compliance with the service provisions of the Order to Show Cause.

The method of service provided for in an order to show cause is jurisdictional in nature strict compliance is required (see, e.g. Zambelli v Dillon, 242 AD2d 353 [2d Dept 1997]; Matter of McGreevv v Simon, 220 AD2d 713 [2d Dept 1995]), thus, the failure to properly serve the order to show cause deprives the court of jurisdiction to entertain the motion (see Daulat v Helms Bros., Inc., 32 AD3d 410 [2d Dept 2006]; Bianco v LiGreci, 298 AD2d 482 [2d Dept 2002]).

As such, defendant John Recchio's (Recchio) order to show cause (mot. seq. no. 006) is denied.

Plaintiff has submitted an Amended Subpoena directed to non-party OpenAI OpCO, LLC seeking: "1. All prompts, inputs, uploaded materials, and corresponding outputs or generated text used to draft, revise, or generate filings, motions, sworn statements, or communications that were transmitted to Plaintiffs, Plaintiffs' counsel, the Court, or filed in this action during the relevant time period; and 2. All prompts, queries, uploaded documents, and corresponding outputs specifically referencing: (a) Plaintiffs Fred Assini or Jason Napolitano; (b) Alpha Tech Lending LLC; (c) the claims or defenses asserted in this action; or (d) filings, motions, or correspondence generated for use in this action" as associated with the accounts registered to defendant Recchio.

Plaintiff asserts that the materials squarely relate to evidence and Recchio's factual assertions regarding the claims and defenses at issue in this litigation, Recchio's AI interactions are "relevant evidence or [are] reasonably calculated to lead to the discovery of information bearing on the claims," and are therefore discoverable. See Mendives v. Curcio, 174 AD3d 796, 797 [2d Dept 2019].

In his moving papers, defendant Recchio contends that the Subpoena and Amended Subpoena should be quashed, and a protective order issued, as the materials sought are privileged as "litigation-preparation."

CPLR § 2304 provides that a Court may quash, modify or fix conditions on a subpoena issued by a party on a non-party. Additionally, CPLR § 3101(a) provides that there shall be full [*3]disclosure of all matter material and necessary in the prosecution or defense of an action. The party seeking disclosure must demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims. See Vyas v Campbell, 4 AD3d 417 [2d Dept 2004]. And, it is well-settled that the Court has broad discretion in the supervision of discovery. See Vasile v. Chisena, 272 AD2d 610 [2d Dept 2000].

"Because of the strong public policy favoring full disclosure, the burden of proving each element of a privilege rests upon the party asserting it." Spectrum Systems Intern'l Corp. v. Chemical Bank, 157 AD2d 444 [1st Dept 1990], aff'd as modified, 78 NY2d 371 [1991].

Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR § 3101[d]). To demonstrate that the anticipation of litigation privilege under CPLR § 3101(d) is applicable, it must be shown that "the material [was] prepared solely in anticipation of litigation." Agovino v. Taco Bell 5083, 225 AD2d 569 [2d Dept 1996]. When such a showing is made, materials prepared in anticipation of litigation are immune from disclosure unless a party shows "substantial need" and is unable to duplicate them "without undue hardship." CPLR § 3101(d)(2); Corcoran v. Peat, Marwick, Mitchell and Co., 151 AD2d 443 [1st Dept 1989]; Lamitie v. Emerson Electric Company-White Rodgers Div., 208 AD2d 1081 [3d Dept 1994].

Plaintiff cites to the matter of United States v. Heppner, for the proposition that defendant Recchio's use of AI is not privileged. 2026 U.S. Dist. LEXIS 32697 (S.D.NY Feb. 17, 2026). In Heppner, the Court found that AI communications with Claude not privileged or confidential and not subject to work-product protection because the materials were created by the defendant "on his own volition," not at counsel's direction and not reflecting counsel's mental impressions or litigation strategy.

However, in opposition to United States v Heppner, a criminal case, it was found that "in the context of a pro se litigant's use of AI to assist with their litigation preparation, the use of AI closely resembles the kind of confidential, strategy-laden iterative work product that Rule 26(b)(3) was designed to protect. In other words, given how AI tools function, it is entirely reasonable for a person to expect some privacy and confidentiality when interacting with these tools, even though they understand a third party is behind the tool collecting and storing their information." Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939, *10-11 [Dist Colorado March 30, 2026].

The Morgan Court directly addressed Heppner in its Decision and found that it was not binding as Heppner involved a criminal matter and not a civil matter.

The Morgan court further found that, "[h]ere, like in Warner v. Gilbarco, Inc., 2026 U.S. Dist. LEXIS 27355, 2026 WL 373043 (E.D. Mich. Feb. 10, 2026), Plaintiff can assert work product protections in connection with his AI use. It is true that AI systems like ChatGPT, Claude, Gemini, and others widely available to the public, collect user data for training and other purposes. But in this Court's estimation, that does not eliminate all expectations of privacy or automatically waive protections." 2026 U.S. Dist. LEXIS 67939, *10-11 [Dist Colorado March [*4]30, 2026].

The Court finds the rationale presented in Morgan persuasive.

Accordingly, the Subpoena and Amended Subpoena shall be quashed.

Notwithstanding same, defendant Recchio's use of AI has not gone unnoticed by the Court. While the Court Rules do not prohibit the use of AI, the defendant's "use of AI frustrates the litigation" Augustin v. Formula 3 Brook. Inc., 2025 NY Slip Op 51113(U) [Sup Ct Kings County 2025] and cannot go unfettered.

As such, defendant Recchio is referred to 22 NYCRR §161, "Use of Artificial Intelligence Technology" and directed to be governed accordingly. Failure to abide by the Court Rules may result in sanctions.

Thus, it is hereby

ORDERED, that the branch of defendant John Recchio's motion to quash the Subpoena and Amended Subpoena served on OpenAI OpCO, LLC (mot. seq. no. 005) is GRANTED, and said Subpoena and Amended Subpoena are hereby quashed and OpenAI OpCO, LLC is not required to provide records in response to the Subpoenas unless a further court order should issue; and it is further

ORDERED, that defendant John Recchio's order to show cause to quash the Amended Subpoena (mot. seq. no 006) is DENIED; and it is further

ORDERED, that plaintiff's cross-motion to So-Order the Amended Subpoena (mot. seq. no. 007) is DENIED; and it is further

ORDERED, that all requests for relief not expressly addressed herein is DENIED; and it is further

ORDERED, that defendant Recchio shall serve a copy of this Order with Notice of Entry upon all parties, and upon non-party OpenAI OpCo, LLC, via Certified Mail/Return Receipt Requested within twenty (20) days of the date of this Order and shall upload proof of service on or before June 29, 2026.

This constitutes the decision and order of the Court.

It is SO ORDERED.

Dated: June 4, 2026

Mineola, New York

HON. RHONDA E. FISCHER

A.J.S.C.