Litigation Minute: Generative AI Data, Attorney-Client Privilege, And The Work-Product Doctrine

What You Need to Know in a Minute or Less

As generative AI (GenAI) tools become embedded in legal and business workflows, courts are grappling with questions regarding how attorney-client privilege and the work-product doctrine apply to GenAI data, including prompts, outputs, and activity logs. While recent decisions confirm that GenAI data may constitute discoverable electronically stored information (ESI) (discussed in a previous Litigation Minute), a separate and equally important question is when those materials may be protected from disclosure.

Recent case law makes it clear that courts will apply traditional privilege and work-product principles to this new category of ESI. Whether a privilege or protection applies will turn on how, why, by whom, and under what conditions GenAI tools are used.