Spencer Fane attorney Arnold D. Lee authored the article Courts Shield AI Prompts and Outputs from Discovery, recently published by Reuters and Westlaw Today.
In his article, originally a firm blog post, Arnold examines the emerging legal question of whether generative AI prompts and outputs used to prepare litigation are discoverable, analyzing two recent court decisions that recognized such materials as protected work product and trial-preparation materials. He explains the limits of those protections, including differences between state and federal courts, expert witness discovery, waiver risks, and the continued obligation to comply with AI ethics and court rules. Arnold also offers practical guidance for litigants and counsel on preserving work-product protection while implementing sound AI governance in litigation.
“The same doctrine that shields a client’s AI sessions will shield the adversaries. Litigators should calibrate discovery requests accordingly – targeting AI-related information that falls outside protection, such as what produced documents were uploaded to third-party tools – and should be ready to log and defend their own clients’ AI materials with the specificity privilege logs require,” Arnold wrote.
At the firm, Arnold helps individuals and entities navigate complex matters through litigation and alternative dispute resolution, providing sound representation in state and federal courts and thoughtful guidance in mediation and arbitration. He skillfully employs comprehensive, client-centered strategies backed by decades of diverse experience and a full-service approach to casework, from intake to resolution.
Read Arnold’s full article here.