Artificial intelligence has quickly become a common tool for drafting emails, summarizing legal concerns, and even helping clients formulate questions before contacting an attorney. While these tools may seem convenient, their use can create significant legal issues when sensitive information is involved. Courts are increasingly treating AI prompts, outputs, and system logs as electronically stored information (ESI), meaning these communications may be discoverable in litigation just like emails, text messages, or other digital records. This raises an important concern for both clients and attorneys: what may feel like a private conversation with an AI platform may later become evidence.
One of the most pressing issues is privilege. Many people assume that entering facts, legal questions, or draft correspondence into a public AI platform carries the same confidentiality as speaking directly with counsel. Recent court decisions suggest otherwise. Courts have indicated that communications made through consumer AI tools may not be protected by attorney-client privilege because the information is being shared with a third-party platform, not directly with an attorney. In practical terms, this means that if a client uses AI to draft a message about a dispute, business disagreement, or estate conflict, those prompts and responses may be subject to discovery later.
Another concern is the preservation of AI-generated communications. If litigation is foreseeable, deleting AI conversations, prompts, or outputs can raise spoliation issues under Rule 37(e), just as deleting emails or electronic files would. Courts are beginning to require preservation of AI interaction logs, including prompts, responses, timestamps, and account information. This is particularly important in trust disputes, fiduciary litigation, and business cases where one party may attempt to rely on AI-generated drafts or analyses. What was once considered a casual drafting tool may become central evidence in court.
The takeaway is simple: while AI can be a helpful tool for organizing thoughts, clients should be extremely cautious about sharing sensitive facts, legal strategies, or confidential communications with public AI platforms before speaking with counsel. The safest course is always to communicate directly with your attorney so that your information remains protected and your legal strategy is developed within the bounds of privilege and confidentiality. At Lord & Lindley, we help clients navigate complex litigation issues in an evolving digital landscape. If you have questions about how technology may affect your case, call (704) 457-1010 or visit www.lordlindley.com.