Author: Lauren W. Waller
Summary — AI chat logs, including prompts and outputs generated through tools such as ChatGPT, may be discoverable in litigation when they are relevant, nonprivileged and proportional to the needs of the case.
Recent court decisions indicate communications with public AI platforms are unlikely to be protected by attorney-client privilege when they are not confidential, are not made to an attorney or are not connected to legal advice. Accordingly, organizations using AI in connection with legal matters should avoid public tools for sensitive information and ensure any AI-generated content is tied to confidential communications with counsel.
Business use of Large Language Models (“LLMs”), like ChatGPT and Claude, is growing rapidly. Employees across departments—legal, finance, sales, and the C-Suite—now routinely use AI platforms to draft content, analyze data, and answer questions.
As with email and other electronic communications, chat logs containing LLM prompts and outputs (“AI Chat Logs”) are discoverable in litigation when they fall within the scope of discovery. See, e.g., In re OpenAI, Inc. Copyright Infringement Litigation, No. 25-MD-3143, 2025 WL 3468036, at *3-5 (S.D.N.Y. Dec. 2, 2025) (ordering the production of ChatGPT logs as they were relevant to and proportional to the needs of the case). Under the Federal Rules of Civil Procedure, AI Chat Logs are discoverable if they are nonprivileged and relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b).
What happens, then, when an employee uses an open LLM[1] for legal questions? Are those prompts and outputs protected by the attorney-client privilege?
