Your AI Chats May Be Discoverable: Preservation And Privilege Considerations For Generative AI Prompts And Outputs

As generative AI tools become part of everyday business and legal work, a pressing question for litigants is whether prompts, outputs, and conversation logs must be preserved and produced in litigation. Recent decisions suggest that AI interactions are generally treated like any other electronically stored information (ESI), and courts have begun to define when those interactions may be shielded as irrelevant or as privileged, and when that protection can be lost.

Key Takeaways

• Once a duty to preserve attaches, preserve relevant AI prompts, outputs and related account settings.
• Expressly cover generative AI tools, both enterprise and consumer, in litigation hold notices.
• Do not assume AI interactions are ephemeral; most platforms retain histories that a court will consider within a party's control.