AI, Confidentiality, And The Scope Of Privilege

Artificial intelligence is now deeply embedded in business operations, with employees across organizations routinely using AI tools in their day-to-day work. On the business side, those tools are used to draft, summarize, analyze, and problem-solve, often outside the direct involvement of legal teams. Those interactions are creating new categories of electronically stored information (ESI). For litigators and discovery professionals, business-side AI use raises important questions about privilege and the discoverability of AI-generated content. A recent decision from the U.S. District Court for the Southern District of New York (SDNY) underscores that AI-generated content may be treated like any other third-party communication and may not be protected simply because it relates to legal issues or ongoing legal proceedings.