Discovery of AI-Generated ESI in Employment Litigation: Evolving Federal and State Case Law; Defense Strategies
Protecting Attorney-Client Privilege and Work Product, Drafting and Responding to Discovery Requests
About the Course
Introduction
This CLE webinar will examine new issues facing employment defense litigators in relation to AI-generated electronically stored information (ESI) and discovery. The panel will discuss recent cases related to when AI-generated ESI may retain attorney-client privilege and work product protections, and how these should shape defense strategies related to the production of AI-generated ESI in discovery, drafting and responding to discovery requests, and other key issues facing employers in the discovery process. The panel will also offer best practices for assisting employer clients with developing AI policies related to the handling of AI-generated ESI to retain privilege and confidentiality protections in the event of litigation.
Description
As AI becomes more entrenched in the workplace, AI-generated documents and other related ESI such as prompts, outputs, chat histories, logs, and vendor-controlled data become potentially discoverable. The case law is evolving as to whether and under what circumstances AI-generated ESI is privileged or considered attorney work product as courts are faced with novel issues.
For example, in Warner v. Gilbarco Inc. (2026), one federal court ruled that the work product doctrine protected a pro se plaintiff's materials that she created using ChatGPT because the materials reflected her mental impressions, drafting process, and litigation strategy and the plaintiff was acting as her own lawyer. On the other hand, around the same time as the Warner decision, in United States v. Heppner (2026), another federal court found that the criminal defendant's documents analyzing potential charges and outlining possible defense strategies that he shared with counsel, although not at counsel's direction, were not protected under attorney-client privilege or the work product doctrine.
What these and other recent cases demonstrate is that the protections afforded to AI-generated ESI during discovery, what may be requested, and what must be produced are very fact-specific. Employment defense litigators should be up to date on the relevant case law to understand how to strategize with their employer clients on producing AI-generated ESI in discovery, determine what should be included in litigation holds, decide what can/should be requested from plaintiffs, and guide clients on implementing AI usage policies in the workplace that retain privilege and confidentiality protections in the event of litigation.
Listen as our authoritative panel examines new issues facing employment defense litigators in relation to AI-generated ESI and offers best practices for preparing for discovery.
Presented By
Mr. Karasik is a core member of Duane Morris’ Workplace Class Action group. He defends businesses in employment law matters ranging from bet-the-company class actions to high-stakes single-plaintiff lawsuits and administrative charges. Mr. Karasik represents clients in a broad range of industries, including restaurants, hotels, sporting venues, retailers, automotive manufacturers, logistics companies and staffing entities. These clients include Fortune 500 multi-national companies and local Chicagoland businesses. His legal analysis has been featured in publications such as Forbes, Law360, Westlaw Today, SHRM, HR.com, the Cook County Record and the Northern California Record. He was recognized by Best Lawyers “Ones to Watch” for 2022 and 2023.
Mr. Palacios is practices in the Employment, Labor, Benefits and Immigration Department and a member of the Workplace Class Action group, where he practices in the area of employment class action defense. He assists employers with responding to a wide range of employment issues, ranging from large class and collective actions to single-plaintiff lawsuits, and administrative charges. Mr. Palacios has diverse industry expertise, and represents companies in the restaurant, insurance, technology, and staffing and logistics sectors. In addition to his class action defense work, Mr. Palacios regularly provides clients with advice and counseling regarding federal, state, and municipal employment compliance and other regulatory matters.
Ms. Ryan defends clients across a variety of industries in complex litigation, including data privacy, consumer protection, product liability, personal injury, breach of contract, and other commercial and tort-based matters. She also advises clients on risk management and privacy issues related to the use of AI tools and systems. Ms. Ryan has substantial experience defending class actions brought under state and federal privacy statutes, including the Illinois Biometric Information Privacy Act (BIPA), the Illinois Genetic Information Privacy Act (GIPA), the California Invasion of Privacy Act (CIPA), the Video Privacy Protection Act (VPPA), Driver’s Privacy Protection Act (DPPA), Telephone Consumer Protection Act (TCPA), as well as consumer protection statutes including the Fair Debt Collection Practices Act (FDCPA), Florida Deceptive and Unfair Practices Act (FDUTPA), and the Florida Consumer Collection Practices Act (FCCPA). She also frequently represents companies in data breach class actions brought throughout the country. Ms. Ryan also has significant courtroom and trial experience, having served as second and third chair trial counsel in civil jury trials involving catastrophic injuries and millions of dollars in claimed damages. She has also first-chaired class action mediations. Ms. Ryan is certified by the International Association of Privacy Professionals (IAPP) as a Certified Information Privacy Professional/United States (CIPP/US).
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, November 17, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Introduction
A. New categories of AI-generated ESI
B. Novel issues related to the discovery of AI-generated ESI
II. Evolving federal and state case law and lessons learned
A. United States v. Heppner
B. Warner v. Gilbarco Inc.
C. Morgan v. V2X Inc.
D. Jeffries v. Hacros Chemicals Inc.
E. Other
III. Practical application in employment litigation
A. Defense counsel
1. Legal strategies with employer clients: retaining attorney-client privilege and work product protections
2. Litigation holds
3. Drafting and responding to discovery requests, depositions
B. Employers
1. AI usage policies and employee training: avoiding the creation of bad evidence
2. Handling potentially privileged or confidential information
IV. Best practices
The panel will review these and other important issues:
- What lessons can be learned from recent case law on when AI-generated ESI may be protected by attorney-client privilege and the work product doctrine?
- How can these lessons help shape defense strategies involving the request and production of AI-generated ESI during discovery?
- What are best practices for guiding employer clients on developing AI usage policies related to the handling of AI-generated ESI to maintain privilege and confidentiality protections in the event of litigation? To avoid creating bad evidence?
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