As generative artificial intelligence tools become ubiquitous in corporate environments, legal experts are urging organisations to overhaul their document preservation and discovery practices to account for AI-generated content that could prove crucial in litigation.

In a new analysis published by Reuters Legal News, three Morgan Lewis attorneys argue that companies using AI tools like ChatGPT face unique challenges in preserving prompts and outputs that may be relevant to legal disputes.

"Generative AI tools hold transformative potential, but they must be carefully evaluated, tested, configured, and used with attention to the creation of potentially relevant documents and data that must be preserved," write Tara Lawler, Matthew Hamilton, and Jeff Niemczura in their commentary.

“It is also imperative for organizations to have information governance policies and trainings in place to account for the use of GAI tools across their business. This includes determining if the GAI-generated prompts and outputs are considered "records" and, if so, updating records retention policies and schedules accordingly. It is essential to have knowledgeable counsel who specialize in the discovery and governance of GAI information to ensure prompts and outputs are retained if/as needed.”

The warning comes as US courts are beginning to grapple with AI-generated evidence. In the 2024 case Tremblay v. OpenAI, a federal judge in California's Northern District ruled that AI prompts created by attorneys reflected their "mental impressions and strategies" and were protected from discovery, while ordering the production of prompts used to generate examples included in court filings.

Unique Preservation Challenges

Unlike traditional documents, AI-generated content presents novel preservation challenges because each tool operates differently in how it creates, stores, and manipulates data.

"An application that creates a bullet-point summary of a meeting typically begins by creating a transcript of that meeting, which it then analyses to produce a summary," the lawyers explain. "Will these documents be stored in the meeting organizer's online file storage, integrated into a corporate network, or distributed across the participants' storage?"

“How long will these records be retained? The answers will depend on both technical configurations and the organization's applicable retention policies.”

The lawyers emphasise that organisations cannot preserve relevant data without understanding where AI tools store information and how to retrieve it for discovery purposes.

Best Practices for AI Governance

The Morgan Lewis team recommends several best practices for organizations using AI tools:

Early Legal Involvement: "Legal and information governance professionals should be considered essential stakeholders to consult when an organization decides to deploy GAI tools," they write.

Understanding Data Flow: Organizations must investigate storage locations and understand what types of documents AI tools create before implementing them.

Policy Updates: Document retention policies may need to be updated to ensure that GAI-generated documents and data are retained for the appropriate duration based on business need and applicable law.

User Training: The lawyers stress that training is "critical" because AI tools can "hallucinate and generate documents and data that may not reflect reality."

"Any AI-generated output must be reviewed and verified before preservation - bullet points, summaries, transcripts, arguments and other GAI outputs must be carefully reviewed and confirmed," they warn.

Growing Legal Implications

The analysis underscores how rapidly AI adoption is outpacing legal frameworks. While generative AI tools have proliferated over the past two years, courts and litigants are only beginning to address their use and outputs in discovery.

"Documents and data created with GAI tools may be relevant to anticipated or ongoing disputes if they pertain to claims and defences and are proportional to the needs of the case," the attorneys note.

The legal experts conclude that organizations must take a "thoughtful and comprehensive approach" to AI integration, balancing the technology's benefits against emerging legal risks and obligations.

The full analysis is available at: https://www.reuters.com/legal/legalindustry/its-time-address-preservation-generative-ai-prompts-outputs-2025-06-10/