Executive Summary
- Independent, unsupervised use of generative AI to analyze legal exposure may not be privileged. A federal court held that a defendant’s AI prompts and outputs relating to a criminal investigation of his conduct were not protected after they were seized pursuant to a search warrant.
- Platform terms matter. If an AI provider reserves rights to retain, train on, or disclose user inputs, courts may find confidentiality—and therefore privilege—compromised.
- Structure AI use under counsel’s direction. The ruling leaves open whether counsel-directed enterprise AI use on a secure platform with strong confidentiality terms may be treated differently. Governance and process may be outcome-determinative.