Watch: What General Counsel and Business Leaders Need to Know

• Open-Source AI Puts Privilege at Risk: Communications with open-source artificial intelligence (AI) platforms lack the attorney involvement and confidentiality that privilege requires. Courts are ordering the disclosure of both prompts and outputs when these elements aren’t satisfied, as the exchanges are with non-attorney third parties rather than counsel.
• AI Creates a False Sense of Confidentiality: While AI interfaces may appear closed to the company’s own system, information typed into open platforms is used to train the AI itself, creating a false sense of confidentiality. Unsupervised employee use is a big risk.
• Early Counsel Involvement Is Essential: Counsel should supervise and direct the use of AI tools, and closed or enterprise-level systems should be deployed instead of open platforms. In-house counsel’s early involvement is vital to establishing privilege protection when disputes are reasonably foreseeable, since attempting to claim privilege after information is already created is ineffective.

In this episode of Speaking of Litigation®, Epstein Becker Green attorneys Gianna Costello, Daniel J. Dwyer, and Adam Paine analyze how courts are applying the traditional attorney-client privilege and work product doctrine to AI-generated materials and communications, and address the practical steps in-house counsel must take when employees are using AI in litigation-related work.