Litigation Minute: Preserving AI-Generated ESI in Anticipation of Litigation

As generative artificial intelligence (GenAI) tools become integral to daily operations, organizations face new challenges in preserving the electronically stored information (ESI) they generate. This article emphasizes that GenAI ESI, including user prompts, outputs, uploaded documents, and usage logs, may not be saved by default and can be overwritten or auto-deleted, leading to potential loss of critical evidence. To mitigate these risks, organizations must understand the specific tools their employees use, review and update retention policies to address GenAI ESI appropriately, and implement robust legal hold procedures that account for the technical realities of these tools. The text advises that retention policies should focus on the content and business purpose of records rather than their format, and that legal holds must be updated to explicitly cover GenAI interactions. Failure to preserve relevant GenAI ESI can result in court sanctions or adverse inference instructions. The article concludes by outlining practical steps for information governance and litigation readiness, such as planning ahead with vendors, training employees, and incorporating GenAI considerations into e-discovery workflows.

(Source：National Law Review)