About

K&L Gates warns companies to preserve AI-generated ESI for litigation

Published
Score
13

Why it matters

K&L Gates published guidance on May 20, 2026, advising organizations to treat generative AI materials as discoverable evidence subject to standard preservation obligations. The firm's "Litigation Minute," authored by Julie Anne Halter and Christopher J. Valente, identifies prompts, outputs, chat histories, logs, and metadata from GenAI tools as potentially relevant ESI that must be preserved once litigation is reasonably anticipated. The advisory targets corporate legal and IT teams navigating the gap between rapid AI adoption in business workflows and existing discovery frameworks designed before these tools became commonplace.

Courts are beginning to address what constitutes discoverable AI-generated material. A Colorado federal case, V2X, Inc., No. 25-cv-01991 (D. Colo. Mar. 30, 2026), illustrates that such materials may qualify for protection in some circumstances but remain subject to preservation and discovery obligations in others. The precise scope of what must be preserved and how privacy and vendor-hosted data complicate the analysis remain unsettled.

Organizations should audit which employees use GenAI tools, review retention settings on vendor platforms, and suspend auto-deletion features where necessary. Legal holds, document-retention policies, and e-discovery procedures require updating to account for AI-generated ESI and the data-hosting arrangements vendors impose. Failure to preserve relevant AI materials once litigation is foreseeable exposes companies to discovery sanctions and disputes over spoliation.

mail Subscribe to Law And Technology email updates

Primary sources. No fluff. Straight to your inbox.

Also on LawSnap