Rules For Use Of AI-generated Evidence In Flux

A recent federal district court ruling suggests that generative AI prompts and outputs are discoverable in litigation — even those that were part of pre-suit investigation. Parameters around use of this type of evidence are still relatively unclear. Nonetheless, litigants should be thinking carefully about privilege, spoliation, reliability and authentication issues that will inevitably arise around AI-generated materials.

Use of prompts and outputs as evidence has arisen most prominently in the context of copyright infringement lawsuits that large classes of authors and creators such as Sarah Silverman and Ta-Nehisi Coates have filed against AI companies.

In Tremblay v. OpenAI, filed in the U.S. District Court for the Northern District of California last June, the authors accused OpenAI of using their copyright-protected materials without permission to train its ChatGPT platform. They alleged that both copying at the input/training stage and at the output