Is There Anything an Employer Can Do to Avoid Waiving Privileges in Using AI Research Tools?

There are no easy answers to the above question, but some general observations will nevertheless be made.  First, the New York district court ruling mentioned above did not address the issue of what the result would be should HR conduct research at the direction of an attorney.   In analogous situations, such as an attorney-directed internal investigation, the employer is allowed to assert the attorney-client or work product privilege in connection with the investigation and the conclusions therein.  This principle would suggest that AI research conducted by the employer at the direction of the attorney would remain privileged.  However, few attorneys will recommend this approach, as the “prompts” used in AI research are so critical themselves as to warrant the attorney’s expertise. 

Thus, a potential solution is to only conduct internal employment dispute-related AI research at the direction of an attorney.  It would seem to be good advice which could be written into the employer’s AI Policy.  In these circumstances, it is probably a good idea to put into the AI prompt that you are doing this research at the direction of counsel.  

Courts will ultimately have to resolve the question of whether the use of AI in discussing the decision-making process by an employer is to be considered as if it is an outside report to a human or instead one’s interaction with software.

This article is part of our May 2026 Newsletter. 

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