eDiscovery professionals have a history of adapting to new data types, and generative AI (GenAI) is the latest technology transforming their workflows. While much focus has been on how GenAI can enhance eDiscovery processes, there is also a growing concern about the discoverability of the data generated through its use.
Key points include:
1. Generative AI Usage: Legal professionals are increasingly utilizing GenAI tools, even those traditionally less tech-savvy, which results in the creation of new data from both the prompts entered ane outputs generated.
2. Potentially Discoverable Data: Both the prompts and the content produced by GenAI could be considered responsive to discovery requests, as prompts can reveal strategies and case insights.
3. Work Product Protection: There’s a possibility that the GenAI-generated content could be protected under work product doctrine if created in anticipation of litigation, but this protection may decline as GenAI becomes more integrated into everyday legal practices outside of litigation.
4. Privilege Concerns: Attorney-client privilege may not apply to GenAI data, as interactions occur between a human and AI rather than between attorney and client, which could change traditional communication dynamics in legal contexts.
As reliance on GenAI grows, the scope of potentially discoverable data will likely expand.
Source: LegalTechHub
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