Records, Evidence, and Privilege

Short Answer

Prompts, uploaded files, outputs and logs can be records subject to preservation and discovery. Their location in an AI account does not make them privileged. In the OpenAI copyright litigation, the broad ongoing preservation obligation ended as of September 26, 2025 under an October 9 order. Separate later orders concerned production of a retained sample of about 20 million de-identified logs. In United States v. Heppner, a February 17, 2026 opinion rejected privilege and work product for a defendant’s consumer AI research undertaken without counsel’s direction. Neither development creates a rule that all AI chats must be produced. Relevance, proportionality, confidentiality and counsel’s role still matter. Texas Ethics Opinion 705 addresses competence, confidentiality, billing and supervision. Court filing requirements differ by district and judge; Northern District of Texas Local Civil Rule 7.2(f) requires a first-page disclosure for a brief prepared with generative AI. AI notetakers also raise recording-consent and biometric questions. Existing authentication and expert rules govern AI evidence while federal rule changes remain under study. The Guides below connect these duties to a records inventory, a legal hold, a privilege analysis and a filing routine that checks the actual authorities.

Key Authorities