United States: Disclosure & Electronic Discovery & Privilege

When an expert uses generative AI to analyze documents in litigation, do the prompts used become discoverable as part of the expert's methodology? A federal magistrate judge recently addressed this question, finding that AI prompts used to cull a document production may be subject to discovery under Rule 26(b), creating new tensions between efficiency and transparency in expert analysis.

The recent explosion of AI use has made legal analysis available to everyone. Clients and litigants who formerly had to rely on their attorneys for virtually all their legal analysis now may query an AI platform and obtain some fairly accurate information on their own.

Complex litigation increasingly involves multilingual evidence spanning multiple jurisdictions, requiring legal teams to manage contracts, emails, financial records, and witness statements across different languages.

When does gross negligence in evidence preservation cross the line into willful misconduct warranting the striking of a pleading? A Manhattan Commercial Division decision examines the boundaries of spoliation sanctions after a cybersecurity firm's pervasive preservation failures led to the loss of critical Slack messages, monitoring tickets, and alarm data spanning the period of a ransomware attack.

Recent court decisions reveal conflicting approaches to whether communications with generative AI tools waive attorney-client privilege or work product protection, creating significant uncertainty for companies handling sensitive legal and proprietary information. Life sciences companies face heightened risks as they increasingly rely on AI tools while managing confidential clinical data, regulatory strategies, and intellectual property that may become subject to discovery in future litigation.

This ruling may open the door to broader discovery of expert AI usage. Parties should consider addressing AI usage explicitly in their discovery protocols and agreements rather than relying on general provisions that courts may decline to extend to novel AI-assisted workflows.

The United States District Court for the Central District of California, applying California law, held that a no voluntary payments clause in an employment practices liability policy barred coverage for post-tender...

The Texas Business Court has entered the growing national debate about whether conversations with AI tools like ChatGPT are discoverable, and it came down on the side of protection.

AI notetakers have become routine in virtual meetings, transforming ephemeral conversations into permanent, searchable records. As these tools quietly record, transcribe, and process discussions across borders, they activate complex regulatory frameworks spanning data protection, communications privacy, and workplace law.