Prompts And Production: Your Chatbot May Not Be Your Friend In Litigation

It is no surprise that many organizations are keen to implement artificial intelligence (or more commonly, “AI”) throughout their workflows. AI has the potential to dramatically speed up banal, day-to-day tasks and synthesize large volumes of complex information. However, recent case law from the United States and the United Kingdom casts a shadow over this broad utility. Early cases show that AI-generated discussions and prompts can be producible in litigation and may be used to prove a party’s actions or intentions. For organizations that have embraced AI tools, these developments warrant careful attention.

Consider first the recent decision in Fortis Advisors, LLC v. Krafton, Inc. In that case, the Delaware Court of Chancery was faced with allegations the defendant, Krafton, had sought to avoid certain contractual earnout obligations. AI chat logs in evidence showed that Krafton's CEO had used AI to devise — and subsequently implement — a strategy to seize operational control of a