TL;DR
AI is reshaping litigation, creating new opportunities and risks for attorneys. From client intake and discovery to case strategy and evidence authentication, firms must understand how AI is used, protect sensitive information, and maintain defensible workflows. The greatest advantage comes from combining AI’s capabilities with experienced human judgment.
Artificial intelligence technologies are quickly becoming part of modern litigation, whether attorneys intentionally adopt it or not. Clients are using AI before they ever contact counsel. Courts are issuing opinions that shape how AI affects privilege, discovery, and evidence. Legal technology platforms are integrating AI into core workflows. And opposing counsel are making their own decisions about how these tools fit into case strategy.
These developments present both opportunities and new responsibilities.
Clients, whether individuals, corporations, or entire classes, depend on their counsel to uncover the facts, understand the risks, develop sound legal strategies, and pursue the best possible outcome. As AI becomes woven into every stage of litigation, understanding how it affects discovery, evidence, privilege, and case strategy is becoming an essential part of fulfilling that responsibility.
The conversation surrounding AI often focuses on productivity or automation. Those discussions can miss the larger shift taking place. AI is influencing how clients prepare for litigation, what may become discoverable evidence, how discovery is conducted, how courts evaluate litigation workflows, and how attorneys authenticate evidence presented at trial.
Whether your firm has fully embraced AI, is selectively incorporating it into specific workflows, or is still evaluating where these tools fit within your practice, understanding these developments is becoming an important part of litigation strategy.
AI May Become Part of Your Case Before You Ever Meet Your Client
Most discussions about AI begin with attorneys. Increasingly, they should begin with clients.
Long before litigation begins or counsel is retained, clients may use publicly available AI platforms to summarize events, analyze information, research legal issues, draft communications, analyze information, or prepare for a potential dispute.
A recent federal decision illustrates why this matters.
In February 2026, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York held in United States v. Heppner that documents created by a defendant using a public AI platform and later shared with his attorney were not protected by attorney-client privilege or the work-product doctrine. Because the communications occurred with the AI platform rather than an attorney, and the platform’s terms of service allowed user inputs to be retained and disclosed under certain circumstances, the court concluded the defendant had no reasonable expectation of confidentiality. The documents were therefore deemed discoverable.
While the case arose in the criminal context, its implications extend well beyond criminal practice.
The decision highlights an important reality: relevant evidence may now exist before the attorney-client relationship even begins.
A client’s AI-generated work product may eventually become part of the discovery process depending on how those materials were created, where they reside, and whether they remain protected. Simply providing those materials to counsel after the fact doesn’t automatically cloak them with privilege.
Just as importantly, Judge Rakoff suggested that the outcome may have been different had counsel directed the client’s use of AI as part of the attorney-client relationship. While the law continues to evolve, the decision reinforces a practical point: attorneys should begin thinking about AI use during intake, not after discovery begins.
That doesn’t necessarily mean discouraging clients from using AI. Rather, it means understanding whether they have used it, what information was shared, and whether those interactions created potentially discoverable data.
Those early conversations can do more than identify potential discovery issues. They can also help attorneys recognize gaps in the factual record, preserve important evidence, and begin developing case strategy from the outset.
Adding a few targeted questions during intake may help identify issues before they become discovery disputes.
- Has the client used an AI platform to organize facts, research legal issues, draft communications, or prepare timelines related to the matter?
- Were those conversations conducted using a public platform or within an enterprise environment?
- Does the client still have access to those conversations?
These questions now deserve consideration alongside more traditional discussions about emails, text messages, social media, and other electronically stored information.
Discovery in the AI Era
The Heppner decision reflects a broader shift occurring throughout discovery.
As firms incorporate AI into document review, legal research, case preparation, and discovery workflows, courts are beginning to distinguish between thoughtful, defensible AI use and workflows that introduce unnecessary risk.
One of the clearest examples is Jeffries v. Harcros Chemicals. There, the District of Kansas approved amendments to a protective order restricting the use of publicly accessible AI platforms for all discovery materials, not just confidential information. The court recognized that information submitted to public AI systems may be incorporated into ongoing model training, creating an irreversible loss of control over that data. The decision signals that AI governance is no longer simply about protecting confidential information; it is about ensuring that discovery workflows remain defensible if later challenged by opposing counsel or the court.
Other federal courts are reaching similar conclusions from different perspectives. In Morgan v. V2X, the District of Colorado emphasized governance by identifying practical safeguards for AI-assisted discovery, including protections against model training, restrictions on onward disclosure, and the ability to delete matter-specific information.
Likewise, the Eastern District of Michigan confirmed that AI-assisted litigation materials may receive work-product protection under appropriate circumstances, reinforcing that the surrounding workflow, purpose, and safeguards remain central to the analysis.
Defensibility comes from thoughtful workflows, appropriate safeguards, and experienced human oversight.
AI Can Strengthen Case Strategy
AI can strengthen the work that has always distinguished successful litigators: uncovering important facts, identifying meaningful connections, developing sound legal strategies, and advocating effectively for their clients.
Large, complex matters often involve thousands, if not millions, of documents and data points spread across multiple custodians, witnesses, and data sources.
AI can help attorneys organize information, connect evidence across multiple custodians and witnesses, identify inconsistencies, and reveal gaps that warrant further investigation. It may also highlight expected evidence that appears to be missing and challenge assumptions as the facts develop. These insights can help attorneys ask more targeted discovery questions, prepare more focused depositions, refine case theories, and approach dispositive motions, settlement discussions, and trial with a more complete understanding of the case.
It’s worth noting that Generative AI can misunderstand context, overlook nuance, or present inaccurate information with unwarranted confidence. Even when its output is technically accurate, it can’t evaluate witness credibility, anticipate how a jury may respond, weigh litigation risk, or determine how a particular fact advances a client’s case. Those decisions remain the responsibility of experienced trial counsel.
Your Choice of AI Platform Matters
Not all AI platforms are designed for legal work. Some offer greater control over how confidential client information, discovery materials, attorney work product, internal communications, proprietary business information, expert materials, and other sensitive case data are stored, retained, and protected. Others may not provide the same safeguards.
Law firms should understand how the platform handles sensitive information, what contractual protections are in place, whether client data may be retained or used beyond the matter, and whether the firm’s workflow can be clearly explained and defended if questioned by opposing counsel or the court.
Choosing an AI platform isn’t simply a technology decision. It’s a strategic litigation decision that should support the firm’s ability to investigate facts thoroughly, develop sound case strategies, protect sensitive information, and make informed decisions throughout the matter.
Before selecting an AI platform, ask:
- Will this platform help us analyze information and develop case strategy without compromising privilege or confidentiality?
- Can our use of AI be clearly explained and defended if challenged by opposing counsel or the court?
- Does the platform support attorney judgment throughout the litigation process rather than substitute for it?
AI Is Creating New Types of Evidence
For years, attorneys have relied on digital evidence to evaluate liability, corroborate or challenge witness testimony, and develop the factual record. Emails, text messages, surveillance footage, photographs, social media content, and other electronically stored information often provide the factual foundation of a case. As AI becomes more sophisticated, however, attorneys should expect both the volume of digital evidence and the questions surrounding its authenticity to increase.
Finding evidence isn’t enough. Attorneys must also be prepared to establish that it is authentic and reliable.
Generative AI has made it easier than ever to create realistic images, audio recordings, videos, and documents. Just as importantly, it has become easier to question evidence that is entirely authentic. An opposing party may argue that a photograph was altered, a recording was generated by AI, or a video was manipulated. Even legitimate evidence may face heightened scrutiny simply because the technology now exists to produce convincing fabrications.
While proposed amendments to the Federal Rules of Evidence addressing AI-generated evidence and deepfakes remain under consideration, courts are already addressing these issues using the rules that exist today. Judges continue to evaluate questions of authenticity, reliability, and admissibility through long-established evidentiary principles.
That means preparation for trial begins long before the first exhibit is offered. Authenticating digital evidence begins when that evidence is first identified. Preserving original files, maintaining metadata, documenting chain of custody, and using defensible forensic collection methods all strengthen an attorney’s ability to establish authenticity if the evidence is later challenged.
This is particularly important in complex litigation, where digital evidence may become central to establishing or challenging liability, damages, or other key issues. A compelling piece of evidence can quickly lose its impact if the focus shifts from what it shows to whether it can be trusted. Building a strong forensic record from the outset helps keep the emphasis where it belongs: on the facts of the case.
Attorneys should also be prepared to evaluate the evidence they receive with the same level of scrutiny. AI-generated or AI-altered content may become increasingly common in litigation, whether introduced intentionally or inadvertently. Understanding how to identify potential issues and work with qualified forensic professionals when authenticity is in question will become an increasingly valuable part of trial preparation.
The Real Competitive Advantage
The technology will continue to change. The responsibility of attorneys will not.
The firms best positioned for what’s next will not be the ones that simply adopt AI. They will be the ones that understand where it creates meaningful strategic advantage, where it introduces new risk, and how to incorporate it into disciplined, defensible litigation strategies that ultimately deliver better outcomes for the clients who depend on them.
📧 info@completelegal.us | 📞 888-885-9909
Meet Ron Robinson, Director of eDiscovery Sales, Complete Legal
With decades of experience spanning law firms, legal technology, and cloud computing, Ron advises law firms and corporate legal departments on defensible discovery strategies for complex litigation. His work focuses on the intersection of AI, eDiscovery, and litigation strategy, helping legal teams uncover facts, manage risk, and develop defensible strategies for complex matters. Learn more at completelegal.us.
Key Takeaways
- Address AI use early: Ask clients about AI use during intake, as AI-generated materials may become discoverable and aren’t automatically protected by privilege.
- Use AI strategically and defensibly: AI can strengthen discovery and case strategy, but firms need appropriate safeguards, platform controls, and human oversight.
- Prepare for AI-generated evidence: Preserve original files, metadata, and chain of custody as AI makes both creating and challenging digital evidence increasingly complex.
