Protecting Privilege In A Changing Legal Landscape

Privilege remains one of the legal profession's most important protections, but its application is being tested in new ways. While the core principles have changed little, emerging technologies, evolving litigation tactics and increasingly sophisticated investigations are prompting courts to examine where privilege begins, where it ends and when it may be lost. For in-house legal teams, understanding these developments is essential to preserving privilege while navigating modern legal risks.

Below are five areas of risk that warrant proactive steps to help prevent inadvertent disclosure.

1. Artificial Intelligence Risks. The growing use of generative AI raises important questions about whether user prompts, chatbot conversations and AI-generated content may be subject to production in litigation. Although Canadian courts have yet to address these issues directly, early decisions from other jurisdictions suggest that traditional privilege principles will continue to apply, making