As generative AI becomes more deeply embedded in litigation and discovery workflows, legal teams are facing a new and increasingly important question: how should AI prompts be treated in discovery?

In her latest article for Thomson Reuters’ Westlaw Today, Nicole Marie Gill, Chair and Managing Member of CODISCOVR, explores how AI prompts can reveal attorney mental impressions, expert methodology, litigation strategy, and potential privilege concerns. The article examines recent court decisions addressing whether prompts and outputs may be protected as work product, discoverable as part of an expert’s methodology, or subject to waiver when relied on affirmatively in litigation.

Nicole also highlights the practical importance of addressing AI use before disputes arise. As courts continue to evaluate generative AI through traditional discovery principles, legal teams should consider how prompts and outputs are preserved, documented, protected, and addressed in ESI protocols, expert workflows, discovery agreements, and protective orders.

To read the full article, “Prompts as Privilege – Courts Grapple with Questions Over Protections for Lawyers’ and Experts’ AI Use,” as published by Thomson Reuters’ Westlaw Today, click here.