Artificial Intelligence (AI)

Are AI prompts, and their generative outputs, discoverable in litigation? A handful of recent district court cases suggest the answer depends on whether the AI prompts and outputs constitute attorney work product.

In Tremblay v. OpenAI, Inc., 2024 WL 3748003 (N.D. Cal. Aug. 8, 2024), the court held that AI prompts written by lawyers can constitute opinion work product when used for litigation-related purposes. The court explained that AI “prompts were queries crafted by counsel and contain counsel’s mental impressions and opinions about how to interrogate [an AI tool], in an effort to vindicate Plaintiffs’ copyrights against the alleged infringements.” In so doing, the court squarely rejected defendant’s argument that AI prompts and outputs only rise to the level of fact work product as opposed to opinion work product. That distinction is important, as opinion work product is offered near-absolute protection from disclosure whereas fact work product is discoverable upon a showing of substantial need for the materials and an inability to secure a substantial equivalent without undue hardship.

Continue Reading A Closer Look: The Discoverability of Artificial Intelligence Prompts

Courts and litigants continue to grapple with the new frontier of artificial intelligence (“AI”).  One recent case in California demonstrates a new wrinkle in this evolving landscape—the use of AI to aggregate class claims.

Because class settlements bind absent class members who do not object or opt out, Rule 23 requires courts to carefully review and approve them as “fair, reasonable, and adequate.”  An important part of this inquiry is making sure class members are given adequate notice of the terms of the proposed settlement and their rights.  When class members are required to submit claims to access settlement benefits, parties often turn to professional claims administration companies to assist in providing notice and facilitating the claims process.  Under Rule 23, courts closely monitor the information that flows from class counsel and claims administrators to putative class members to make sure it complies with due process.

Continue Reading California Federal Court Clamps Down on ‘En Masse’ Class Claims Identified by AI

An Illinois federal district court recently rejected dismissal of Illinois Biometric Information Privacy Act (“BIPA”) claims in In re Clearview AI, Inc., Consumer Privacy Litigation, No. 21-cv-135 (N.D. Ill.).  The Clearview plaintiffs alleged that Clearview violated their privacy rights without their knowledge and consent by scraping more than three billion photographs of facial images from the internet and using artificial intelligence algorithms on the images to harvest individuals’ unique facial biometric identifiers and corresponding biometric information.  Clearview sought dismissal of the BIPA claims under the First Amendment, extraterritoriality doctrine, dormant commerce clause, and BIPA’s express exemption for  photographs.  The court rejected these grounds, and declined to dismiss the BIPA claims.

Continue Reading Court Rejects Dismissal of Illinois Biometric Information Privacy Act Against Clearview in Pending Multidistrict Litigation