AI Prompts And Outputs: Privilege And Work Product

Should AI prompts and outputs be awarded special privilege under the law? Discussions regarding attorney-client privilege and work product concerns for AI have become part of public discourse since Sam Altman, the CEO of OpenAI, posted on X about the possibility of an "AI privilege" under which, according to Altman, "talking to an AI should be like talking to a lawyer or a doctor."¹

But how are courts handling the concept of AI privilege? In a recent case involving OpenAI, the Southern District of New York rejected OpenAI's argument that certain summaries of prompts and outputs should be protected by the attorney-client privilege.² There, the class plaintiffs filed a motion to compel production of certain documents to which OpenAI claimed privilege protection. One of the documents was an excel spreadsheet with various entries written by OpenAI employees that describe and evaluate prompts to and output responses from a ChatGPT model. OpenAI asserted that the