More courts are confronting modern issues related to confidentiality, work product, and privilege as an increasing number of litigants and law firms are using artificial intelligence for assistance with lawsuits. This Insight provides both snapshot and in-depth looks at some of the earliest court decisions to addresses these AI issues – and offers three practical takeaways for employers.
| Snapshot Overview - At least two federal courts have held that AI-generated materials prepared in anticipation of litigation are protected from discovery under the work-product doctrine. Both cases involved pro se plaintiffs bringing employment discrimination claims. One of these courts, however, said that no protections applied regarding the name of the AI tools the plaintiff used.
- One federal court reached the opposite conclusion in a criminal case, ruling that neither the work-product doctrine nor attorney-client privilege applied to a defendant’s AI-generated legal advice.
- One state court ruled that AI queries or output for legal assistance were not protected by the work-product doctrine under state Rules of Civil Procedure.
- Two federal courts have approved protective orders banning the parties from uploading confidential information – and, in one of the cases, non-confidential information – into AI tools that lack certain safeguards.
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Deeper Dives
Two early courts split on protections for AI use in litigation.
- Warner v. Gilbarco, Inc. In an employment discrimination...
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