As more clients turn to AI chatbots for quick answers, lawyers are warning that those conversations can carry serious privilege and discovery risks.
McCarter partner Peter Zarella spoke with The AmLaw Litigation Daily about how advances in technology have changed the way intent and decision‑making are reflected in evidence.
“There’s always been different levels of inference you’ve had to make. Back in the day, you had to look at the act itself and the potential justifications for it and sort of figure out what was reasonable,” Peter said. “Then, with the birth of email, you had more examples of people getting close to saying what they thought, or what they were really trying to do. And now OpenAI means people are quite literally putting in exactly what they want to do.”
Peter also noted that there are many approaches in-house lawyers can take, and have now started taking, to mitigate the risks of their clients using AI, with one baseline being instructions not to ask a legal question without first looping in the general counsel, which can then lead to getting those communications covered by attorney-client privilege.