If you or your employees use ChatGPT or other generative artificial intelligence to help during a lawsuit, are the AI chat histories and other archived data fair game during discovery, or are they protected by the attorney-client privilege or work-product doctrine? As the use of GenAI tools expands into business operations and transforms employment litigation, more courts are beginning to address this critical question. We’ll cover two recent federal court decisions that reached nearly opposite conclusions and offer five practical takeaways for employers.
Quick Background
During the discovery phase of a lawsuit, the parties are required to collect and exchange evidence, including electronically stored information (ESI) to understand the facts of the case. However, discovery requests are limited by relevance, proportionality, and other rules, and certain materials and communications are protected. For example:
Just as we predicted in our FP Forecast 2026, AI-generated ESI – especially from notetakers, meeting summaries, auto-drafted emails, and chat assistants – is becoming a core discovery battlefield in employment cases, as highlighted by two recent cases discussed below. We also recently covered how the rise of the “ChatGPT plaintiff” and how AI is transforming employment litigation, driving up defense costs, and what in-house counsel can do about it.