Letters to expert witnesses and AI security: what instructing an expert gives away in ChatGPT or Claude.

A letter of instruction to an expert sets out the dispute, the documents and the questions the court needs answered, and the Expert Witness Code says it may be annexed to the report. That makes it tempting to polish in ChatGPT or Claude, and risky: it also carries the weak points in the client’s own records and documents produced on subpoena. The Supreme Court of NSW has a practice note on generative AI that speaks to both. This page marks every item in a typical letter to a metallurgist and shows how the same letter is drafted on Ermos inside the firm.

The letter of instruction to an expert

Sent after proceedings are on foot, when the case turns on a technical question, and later relied on to show what the expert was asked and told.

Carrick Doyle Lawyers
30 October 2026


By email

Re: : instructions to expert

Dear Dr Tran,

Background.

A difficulty.

Questions.

Documents.

The Code.

Generative AI.

Timetable.

Yours sincerely,
Eleanor Vance

An invented letter. The file number and document references are invented. Hover or tap any highlighted item for the analysis; the full list is below.

What leaves the firm

  1. 1
    The proceedings and the file number

    Named parties, the court and a file number. With the matter identified, the whole dispute is searchable. Rule 9 confidentiality guide.

  2. 2
    The expert

    A named professional engaged on a live proceeding. Her personal information, and a fact the other side may want to know before the report is served. Privacy Act guide.

  3. 3
    The client’s account of the dispute

    The product, the claim, the defendant’s allegation and the client’s theory of what went wrong. Confidential to the client, and communications made for the dominant purpose of litigation. Legal privilege guide.

  4. 4
    A gap in the client’s own records

    An unsigned inspection sheet and a late test report, with the instruction not to assume. The firm’s candid view of the client’s weakest point, which the other side would like to read. Legal privilege guide.

  5. 5
    The questions

    What the firm asks the expert reveals the theory of the case: that loads at the defendant’s shipyard caused the cracks. The questions are the strategy. Legal privilege guide.

  6. 6
    Documents produced on subpoena

    A class surveyor’s report obtained by compulsory process. Paragraph 9A of Practice Note SC Gen 23 says material produced on subpoena, and material under the implied (Harman) undertaking, must not be entered into any Gen AI program unless the practitioner is satisfied of the conditions it lists. Legal privilege guide.

  7. 7
    The other side’s foreshadowed claim

    A cross-claim figure and its basis. Information about an opponent’s position that the firm holds for the client. Rule 9 confidentiality guide.

  8. 8
    The Code of Conduct paragraph

    A summary of Schedule 7 and rule 31.23 of the Uniform Civil Procedure Rules. Public rules with no client or party in them.

  9. 9
    The generative AI paragraph

    A summary of paragraphs 20 and 24 of the practice note. A public document. Paragraph 20 concerns the expert’s report; the letter of instruction is not the report.

  10. 10
    The timetable and the fee estimate

    A due date and the expert’s cost estimate. Low sensitivity alone, but it names the expert and the matter.

What happens in Frontier Models (ChatGPT, Claude)

  • The whole document is transmitted to the provider’s servers. On personal plans the user cannot choose where it is stored or processed, and for the major providers that has generally meant outside Australia, under that country’s legal process. Some business plans offer storage in Australia, but the provider still receives the content.
  • On consumer tiers, prompts can be retained and used to train future models.
  • The provider’s staff and systems can reach the content under the provider’s own policies.
  • Once sent, the firm no longer controls it. Retention and deletion happen on the provider’s terms.

The same document on Ermos

Ermos Dominion

The document is drafted on a unit in your office, from your own templates and the matter file. Every marked item stays on the unit, which keeps working with the internet switched off. Nothing in it is transmitted to an AI provider, so there is no disclosure to analyse: the confidentiality work is the same as for your file server.

Ermos Edge

Your documents, the index and your access boundaries stay on your own instance in an Australian data centre. When a staff member asks for this draft, only their question and the excerpts they are permitted to see go to a named Australian provider, who is contractually barred from keeping the content or training any model on it. Nothing is processed outside Australia.

Frontier Models (ChatGPT, Claude)Ermos EdgeErmos Dominion
Where the document is processedProvider servers, generally offshore on personal plansYour instance in an Australian data centre; answers generated in AustraliaThe unit in your office
Who can read itProvider staff and systems, under policyYour staff, within the boundaries you set. The named Australian provider processes only permitted excerpts, under contract, and keeps nothingYour staff only
Is it keptOn the provider’s termsKept on your instance; the provider is barred from retaining itStays on the unit
Can it train a modelOn consumer tiers, yesNo, by contractOnly your own unit learns from it, on your hardware

Part of AI data leakage in law firms. See how this works in practice: Matter work on Ermos.

Common questions

Do ChatGPT and Claude use the information in a letter of instruction to an expert?
Yes, a pasted letter is sent to the AI company's servers and processed there to produce a reply. As at October 2026, whether a conversation on a personal plan (ChatGPT Free, Plus or Pro; Claude Free, Pro or Max) can be used to train the models depends on a setting each user controls. Business plans (ChatGPT Business and Enterprise, Claude Team and Enterprise) and the developer APIs sit under commercial terms, and OpenAI and Anthropic each say they do not train on that content by default (OpenAI, Anthropic). On either product, the thumbs up and thumbs down buttons can send a whole conversation back for training. This letter carries the three questions that reveal the case theory, an unsigned inspection sheet in the client's own records and a class surveyor's report produced on subpoena.
Is it safe to paste a letter of instruction to an expert into ChatGPT or Claude?
No, and the subpoenaed report is the clearest problem. Paragraph 9A of Supreme Court of NSW Practice Note SC Gen 23 says material produced on subpoena, and material under the implied (Harman) undertaking, must not be entered into any Gen AI program unless the practitioner is satisfied of the conditions it lists. The Office of the Australian Information Commissioner (OAIC) recommends in its guidance on commercially available AI products that organisations do not enter personal information, and particularly sensitive information, into publicly available generative AI tools, because of the significant and complex privacy risks. The letter also names the expert and the proceedings.
Does deleting the chat remove a letter of instruction to an expert from ChatGPT or Claude?
Not on its own. Deleting a chat removes it from the user's history, but OpenAI and Anthropic each say they can keep a deleted chat on their systems for up to 30 days, and longer where safety or legal obligations apply (OpenAI, Anthropic). The class surveyor's report was produced on subpoena on 26 October and may be used only for this proceeding, so a deleted chat is not evidence that the letter or its enclosure has gone from the AI company.
How can a law firm use AI for a letter of instruction to an expert without sending it to ChatGPT or Claude?
Ermos is built so the document stays under your control. On the Dominion AI unit it is drafted inside your office and none of it is sent to an AI provider. On Ermos Edge your documents and index stay on your own instance in an Australian data centre, and only the question and the excerpts the user is permitted to see go to a named Australian provider that is contractually barred from keeping them or training any model on them. The letter is drafted from the matter file and the firm's own precedent letters of instruction, and a solicitor checks every question and document reference and signs it.
What does the NSW Expert Witness Code require of an expert's report?
Under rule 31.23 of the Uniform Civil Procedure Rules 2005 an expert must comply with the Code in Schedule 7, and the report is not received unless the expert acknowledges reading it and agrees to be bound. The report must give the expert's qualifications, the facts and assumptions behind the opinions, and the reasons for each opinion, and the expert's paramount duty is to the court.
Can an expert use generative AI to write a report for the Supreme Court of NSW?
Not without prior leave. Practice Note SC Gen 23, paragraph 20, says Gen AI must not be used to draft or prepare the content of an expert report or any part of it without the Court's prior leave. Paragraph 21 lists what an application must identify, and paragraph 24 requires lawyers to draw the requirements to the expert's attention when instructing.
Why does the practice note matter for documents sent to an expert?
Paragraph 9A says information produced on subpoena, or under the implied (Harman) undertaking, must not be entered into any Gen AI program unless the practitioner is satisfied that it stays in a controlled environment, is used only for the proceeding and is not used to train a model. A letter enclosing such documents sits squarely within that paragraph.

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