A Mix of Judicial Perspectives on AI Use in Legal Matters

In a recent article, lawyers from Fried Frank discussed whether certain conversations utilizing artificial intelligence tools would be protected from discovery, under either the attorney-client privilege or the attorney work product doctrine. At this stage, the lawyers wrote, courts are taking different approaches, therefore AI users may wish to monitor this evolving area and assume that AI usage may be discoverable to some extent in litigation. They summarized several recent cases, including one in which a court found that a criminal defendant’s exchanges with a consumer version of Claude, which were not directed by his lawyer, was discoverable. In another case, a court held that a pro se litigant’s use of AI was work product, and therefore protected from discovery, because it was used in anticipation of litigation and in a manner not likely to get into an adversary’s hands. The Fried Frank lawyers wrote that courts have considered:

• Whether the AI exchanges with AI were directed by legal counsel;
• What the particular AI platform’s terms of use were, especially relating to confidentiality;
• Whether AI was used in a manner that the exchanges could reach the hands of the litigation adversary; and
• The specific wording of the federal or state rules of civil procedure that were applicable.

Among several practice points and recommendations, the Fried Frank attorneys stated that companies should monitor the evolution of the law in this area as more cases are decided and inform and train directors, management, and employees with respect to AI use on legal-related matters and issues.

Click here to read the Fried Frank article on AI use in legal matters.