Use of AI in Litigation and the Impact on Disclosure.

AI and AI-supported technology have been a developing area over the past few years, both in the legal sector and in society generally. Many law firms now employ secure, specialised AI platforms to enhance their work. These systems can analyse case documents, review large volumes of evidence, suggest relevant case law, and assist with administrative tasks. Trusted AI platforms with robust data security and ethical practices are essential.

We accept that clients can find legal documentation or concepts challenging and may consider turning to software such as AI to assist them in understanding information. However, there are significant risks in using public AI systems against the more secure, specialised ones currently being used by law firms.

As part of your instruction of Lanyon Bowdler, our representation comes with certain types of legal privilege. These include litigation privilege and legal advice privilege.

Litigation privilege is a concept which allows parties to investigate potential disputes without the worry that those investigations could be disclosed to the opponent during the course of a claim. It covers any document or communication which has been produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation subject to certain conditions. These four conditions are that:

1. The document is a communication between:

• The legal advisor and the client;
• The legal advisor and a third party (e.g. an expert, witness or other professional), or
• The client and a third party;

2. Litigation must be in progress or in contemplation;

3. The communications must have been made for the sole or dominant purpose of conducting that litigation; and

4. The litigation must be adversarial.

Legal advice privilege is broader in scope than litigation privilege and allows clients to discuss their legal position with their legal advisor in the knowledge that their communications will remain confidential.

However, based on the current guidance and legal framework, any documentation or information which has been entered into a public AI system (such as chatbots, ChatGPT, Microsoft CoPilot etc) is considered to be a waiver of both your litigation privilege and legal advice privilege. Documentation or information entered into these platforms is considered to be within the public domain and could become disclosable evidence within your case. You may be obligated to provide copies of this documentation to the opponent for their inspection, which may involve providing them with sensitive or confidential information which could impact on your claim.

Equally, as any documentation or information entered into a public AI system is likely to be retained and stored by that system, the opponent may be able to obtain sensitive or confidential information in your claim by making enquiries either to the AI provider or through the platform itself.

We therefore encourage in the strongest possible terms that you do not upload any sensitive or confidential information relating to your claim into a public AI system and instead, if you have any queries or would like clarification regarding any aspects of your claim then please contact your legal advisor first to discuss them in greater detail. This will allow for the continuation of your litigation privilege and legal advice privilege and avoid any sensitive or confidential information from having to be disclosed unnecessarily.