As generative AI tools become integral to legal workflows, their prompts and outputs are emerging as vital pieces of evidence, demanding a reassessment of how law firms govern these digital interactions. A recent Reuters piece highlights a growing consensus: “unique records” generated by these systems must be preserved, overseen and discoverable. This isn’t just theoretical; the 2024 Tremblay v. OpenAI case illustrated how courts are already urging firms to disclose AI-generated content during discovery, raising questions around privilege and spoliation.
In practice, preserving AI records means extending traditional governance policies to cover every interaction with AI, whether prompt typed by a lawyer or response crafted by the machine. Legal teams must understand whether an AI app stores conversations in the cloud, locally, or not at all. That knowledge informs how prompts and responses are captured, who can access them and under what circumstances they’ll be held. According to industry experts, involving legal counsel early, before AI deployment, is essential to build retention and hold protocols into the system’s architecture .
A robust policy goes beyond storage. It demands training so practitioners recognise the reliability and risk of AI outputs and avoid “hallucinations” that could mislead. Premium guidance emphasises a defensible governance framework: clear procedures, designated roles, and accountability. Firms must define when content is put on legal hold and ensure it remains unaltered until case closure . This mirrors broader electronic discovery practices, but adds complexity as AI stimuli create ephemeral yet substantive records.
This regulatory shift is timely. As AI permeates contract drafting, legal research and memorandum generation, every snippet of generative dialogue could be subject to subpoena. The Tremblay precedent underscores that even off-hand legal counsel via AI may be discoverable if referenced. Ignoring this evolving standard could risk sanctions, or worse, compromised client confidentiality.
For general counsel and managing partners, the implication is clear: adapt swiftly. Update retention schedules, brief teams on AI handling, and clarify responsibility for oversight. Firms that navigate this responsibly will bolster both compliance and client trust. Preserving transparency in AI usage isn’t merely good practice, it is becoming a legal imperative.
