Privilege challenges in the era of generative AI

Generative artificial intelligence (GenAI) is quickly becoming part of everyday legal work, but recent court decisions show it can also create real risks for attorney-client privilege. In a closely watched Southern District of New York case, the court held that materials a defendant generated using a public GenAI tool and later shared with his counsel were not protected by privilege. The decision underscores how context-specific factors like the type of AI tool used, whether it’s confidential and the level of lawyer involvement can make or break a privilege claim.

This article summarizes that ruling, highlights why the court decided the material did not qualifies for attorney-client privilege or work-product protection and explores how the analysis might have differed if a confidential or enterprise AI tool had been used. The article also notes how this decision differs from another recent case where the court, confronted with the same question and slightly different facts, reached a different conclusion, finding that GenAI prompts and outputs protected when they were crafted by counsel as part of a legal investigation.

The article also offers practical takeaways for organizations navigating GenAI adoption, notes how employee use of public AI tools can inadvertently waive privilege, explains why policies and governance matter and identifies how legal teams can still leverage GenAI while reducing discovery and confidentiality risks.

If your organization is using—or considering using—GenAI in legal or business workflows, this is article will help you understand where privilege lines are being drawn and how to stay on the right side of them.

Read the full article, "Recent GenAI rulings highlight challenges with safeguarding privilege."