Discovery of AI-Generated ESI in Employment Litigation: Evolving Federal and State Case Law; Defense Strategies

This CLE webinar will examine new issues facing employment defense litigators in relation to AI-generated electronically stored information (ESI) and discovery. The panel will discuss recent cases related to when AI-generated ESI may retain attorney-client privilege and work product protections, and how these should shape defense strategies related to the production of AI-generated ESI in discovery, drafting and responding to discovery requests, and other key issues facing employers in the discovery process. The panel will also offer best practices for assisting employer clients with developing AI policies related to the handling of AI-generated ESI to retain privilege and confidentiality protections in the event of litigation.

As AI becomes more entrenched in the workplace, AI-generated documents and other related ESI such as prompts, outputs, chat histories, logs, and vendor-controlled data become potentially discoverable. The case law is evolving as to whether and under what circumstances AI-generated ESI is privileged or considered attorney work product as courts are faced with novel issues.

For example, in Warner v. Gilbarco Inc. (2026), one federal court ruled that the work product doctrine protected a pro se plaintiff's materials that she created using ChatGPT because the materials reflected her mental impressions, drafting process, and litigation strategy and the plaintiff was acting as her own lawyer. On the other hand, around the same time as the Warner decision, in United States v. Heppner (2026), another federal court found that the criminal defendant's documents analyzing potential charges and outlining possible defense strategies that he shared with counsel, although not at counsel's direction, were not protected under attorney-client privilege or the work product doctrine. 

What these and other recent cases demonstrate is that the protections afforded to AI-generated ESI during discovery, what may be requested, and what must be produced are very fact-specific. Employment defense litigators should be up to date on the relevant case law to understand how to strategize with their employer clients on producing AI-generated ESI in discovery, determine what should be included in litigation holds, decide what can/should be requested from plaintiffs, and guide clients on implementing AI usage policies in the workplace that retain privilege and confidentiality protections in the event of litigation.

Listen as our authoritative panel examines new issues facing employment defense litigators in relation to AI-generated ESI and offers best practices for preparing for discovery.