Alerts2.24.26
AI Chats May Be Discoverable, Even Those Regarding Legal Strategy
Highlights
- AI prompts and outputs, even when created in anticipation of litigation, may be discoverable.
- Courts may look to the privacy policies of the AI tool used to determine the applicability of the attorney-client privilege.
- If the use of AI is not at the direction of counsel, and does not reflect current litigation strategy, its output may not be afforded protection under the work product doctrine.
As some have argued that the use of artificial intelligence technologies shall ultimately become ubiquitous in the practice of law, questions regarding the discoverability of prompts and outputs have been omnipresent in the minds of litigators and sophisticated litigants. A U.S. court has now had the opportunity to address this issue. In United States v. Heppner — a securities and wire fraud case in the Southern District of New York (1:25-cr-503), the court stated, “[o]nly three years after its release, one prominent AI platform is being used by more than 800 million people worldwide every week. Yet the implications of AI for the law are only beginning to be explored.”
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