Litigation Minute: Is AI-Generated Content Discoverable? What Companies Need to Know in 2026
WHAT YOU NEED TO KNOW IN A MINUTE OR LESS Artificial intelligence tools are rapidly reshaping how ESI is created and stored, particularly with respect to content generated by large language models. As companies adopt generative AI (GenAI) tools for drafting, summarizing, analyzing, and other business uses, courts are grappling with whether GenAI Data such as prompts (what a user types),outputs (what the AI tool generates), and activity logs (data about when and how tools were used) fall within traditional discovery obligations. The details are evolving, but recent court decisions make two things clear: Relevant GenAI Data is discoverable; and Parties must treat it like any other potentially relevant ESI Traditional Discovery Rules Still Govern Non-Traditional Data Under FRCP 26(b)(1), parties may obtain discovery of non-privileged material that is relevant and proportional to the needs of the case. Courts have made clear that new forms of ESI are not exempt simply because they are nove...