Preservation of Generative AI Prompts and Outputs
The rise of generative artificial intelligence (GAI) tools has introduced significant legal challenges, particularly concerning data privacy, data security, and privilege considerations. As organizations adopt these tools, it is crucial to understand how to preserve the unique information generated by GAI for potential litigation.
Legal Implications of GAI Outputs
In the context of discovery, the prompts and outputs produced by GAI tools may be viewed as unique information that must be preserved. Organizations need to evaluate whether this information qualifies as “records” and to revise their electronic discovery (ESI) agreements accordingly. This shift necessitates comprehensive information governance policies and training to account for GAI usage.
Understanding GAI Tool Functionality
Each GAI tool operates distinctly, influenced by its configuration and data storage practices. Legal professionals must comprehend the types of data being created and where it is stored. For instance, a GAI application that generates a bullet-point summary from a meeting transcript will have varying storage protocols. The retention duration of these records will depend on both technical configurations and the organization’s retention policies.
Judicial Responses to AI-Generated Artifacts
As GAI tools proliferate, courts are gradually starting to address their implications. In the landmark case of Tremblay v. OpenAI, the U.S. District Court for the Northern District of California examined the use of prompts in copyright infringement disputes. The court ruled on the necessity of preserving prompts created by counsel, highlighting the importance of employing a reproducible workflow to advocate effectively in legal disputes.
Best Practices for Preservation and Governance
To ensure the appropriate preservation of GAI-generated documents, legal and information governance professionals should implement the following best practices:
Early Engagement with Legal Teams
Involving legal and information governance professionals early in the deployment of GAI tools is essential. Delayed legal consultation can lead to complications in data preservation and hinder the protection of attorney-client privilege.
Comprehend Data Creation and Storage Mechanisms
Legal teams should be included in the selection and testing phases of GAI tools to understand how and where relevant documents are generated and stored. A thorough investigation of storage locations is vital for effective data preservation during discovery.
Update Retention and Legal Hold Policies
Document retention policies must be revised to incorporate GAI-generated documents, ensuring compliance with business needs and applicable laws. Legal hold notices should also address new data types introduced by AI tools to reinforce the need for preservation among employees.
Emphasize User Training
The results of GAI tools can vary significantly based on user interaction. A robust training program that covers both the capabilities and risks associated with GAI tools is crucial. Users must be made aware that AI-generated data may not always be accurate and should be verified before being preserved.
Conclusion
As organizations increasingly leverage generative AI technologies, the balance between risk and benefit must be carefully navigated. Understanding the implications of GAI in legal contexts, along with establishing comprehensive governance practices, will be vital for effective and defensible management of AI-generated content.
