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03/24/2026
Can Your AI Chat History Be Used Against You in a Lawsuit?
Source: Fisher Phillips, March 20, 2026
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:
- The attorney-client privilege shields certain communications from discovery if they are between a client and their attorney, intentionally kept confidential, and for the purpose of obtaining or providing legal advice.
- The work product doctrine protects certain materials from discovery if they were prepared in anticipation of litigation, such as legal strategies, notes, and analyses.
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.
