"You're getting ready to make a document production to the other side. You're worried though that the other side may use GenAI tools on the documents that don't ensure they are protected from public disclosure. You ask to see the other side's policies just to be sure. They refuse. You ask the judge for a protective order since some of your documents contain trade secrets."
"The Reality Think this couldn't happen? Think again. We live in a world of interconnected GenAI tools where inadvertent or unintentional disclosure can easily happen. And the ease of use makes the temptation to and likelihood of use of these tools pretty great. Moreover, it just takes one slip up for documents to be jeopardized. Finally, while you may be able to control your shop, you have little control once the documents leave your hands."
Legal document production carries substantial risk because opposing parties may use GenAI tools that do not protect confidentiality, allowing sensitive materials to become public. Courts may deny protective orders, leaving trade secrets exposed and causing irreversible economic harm if documents are ingested by public GenAI databases. Ubiquitous, easy-to-use GenAI increases the likelihood of inadvertent disclosure, and a single slip can jeopardize documents. Internal use of GenAI can be acceptable with robust policies, thorough training, and consistent reminders, but control is lost once materials leave an organization, and mobile devices and opposing-party processes create significant exposure risks.
Read at Above the Law
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