Chatbot Conversations Are Discoverable In New Jersey Litigation

Chatbot Conversations Are Discoverable In New Jersey Litigation

Why Chatbot Exchanges Are Not Privileged

Attorney-client privilege in New Jersey protects confidential communications between a client and an attorney for the purpose of obtaining legal advice. Once a third party is introduced, privilege is usually waived unless that third party is necessary to the rendition of legal services and bound by confidentiality. A consumer-facing chatbot is a third party. It is not your attorney, it is not an agent retained under a confidentiality agreement, and it does not owe you a duty of loyalty. As a result, what you type into a chatbot is ordinarily not privileged.

Work product protection is also limited. It applies to materials prepared in reasonable anticipation of litigation by or for a party or that party’s attorney. Free-form prompts and outputs used for brainstorming or research often fall outside that protection, and even when portions reflect counsel’s mental impressions, disclosure to a third party outside the litigation team can undermine any claim of protection.

How New Jersey Discovery Reaches Chatbot Content

New Jersey’s discovery rules are broad. Parties may obtain nonprivileged information relevant to a claim or defense that is proportional to the needs of the case. See R. 4:10-2. That scope applies to electronically stored information, which includes saved prompts, transcripts, exports, screenshots, and cached data. If a party used a chatbot to draft a statement, refine a narrative, or test a theory, an opponent may seek those materials during discovery.

Courts use subpoenas to compel the production of documents from parties and non-parties. See R. 1:9. A litigant can demand that an opposing party produce its own chat records. If a party refuses or claims the burden, the court can order production subject to reasonable safeguards. When records are held by a provider, counsel may serve a subpoena duces tecum on the provider. Even if federal privacy statutes restrict a provider from handing over content in some settings, the party that created or possesses the chats can still be compelled to produce its copies.

Confidentiality Promises and Privacy Policies Do Not Create Privilege. 

Platform privacy policies and terms of service govern business practices. They do not create the attorney-client privilege. They do not create work product protection. They often disclose that content may be retained, processed, shared with service vendors, or disclosed to law enforcement upon receipt of a legal process. None of that transforms your prompts into protected legal advice. The safest assumption is that anything you type into a chatbot may one day be read by an adversary, a regulator, or a judge.

Corporate Use Raises Additional Risk

Employees frequently use chatbots to draft emails, policies, or performance write-ups. If those drafts influence corporate decisions, they become fair targets for discovery. Use on employer devices or networks raises ownership and access issues. New Jersey courts have recognized privacy interests in certain contexts, such as personal webmail used for attorney-client communications, but this protection is contingent upon the attorney-client relationship and specific facts. See Stengart v. Loving Care Agency, Inc., 2010. Routine chatbot use does not fit that framework. Employers should expect that chatbot drafts and prompts created in the course of business can be requested in litigation and may be accessible under company policies.

Preservation Duties Attach Early

Once litigation is filed or reasonably anticipated, a party must preserve relevant information. That includes chatbot prompts, outputs, conversation IDs, exports, and any documents created or revised using a chatbot. Counsel should issue a litigation hold that instructs custodians to stop auto deletion, turn off settings that purge histories, save relevant transcripts, and preserve local copies of pasted outputs. Failure to preserve can lead to sanctions, adverse inferences, or cost shifting.

Protective Orders And Practical Limits

Courts recognize that discovery has limits. If a request for chatbot data is overly broad or seeks proprietary or sensitive material, the responding party may seek a protective order under R. 4:10-3. Judges balance relevance, burden, and privacy. Narrow time frames, targeted custodians, and topic limitations are common. In appropriate cases, a court may permit redactions, staged production, or in-camera review. None of these tools converts chatbot conversations into privileged communications. They simply manage how nonprivileged information is exchanged.

Practical Guidance for Individuals and Businesses

Treat chatbot conversations as discoverable records. Do not input trade secrets, personal health information, nonpublic financials, or privileged communications. If legal analysis is needed, speak with counsel, not a chatbot. If counsel chooses to use an AI tool in a legal workflow, the engagement should be structured through the law firm with written confidentiality terms, access controls, and a documented purpose so that any use supports rather than erodes privilege or work product. Maintain a clear record of when and how chatbot content influenced business decisions or documents, since those links will be examined in discovery. Establish internal policies that govern the acceptable use, retention, and preservation of information. When litigation looms, collect and preserve chat records promptly.

Bottom Line

Chatbot conversations are not confidential or privileged in the same way as attorney communications. New Jersey discovery rules apply, and courts will compel production when requests are relevant and proportional. The sound practice is to keep sensitive legal or business information out of public-facing tools, involve counsel early, and preserve records once a dispute becomes likely.

For more information about your legal rights or to schedule a consultation, please contact the Law Offices of Peter J. Lamont at www.pjlesq.com, call 201-904-2211, or email info@pjlesq.com.

Contact us today to discuss your business or legal matter. Put our 20+ years of legal experience to work for you.

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For detailed insights and legal assistance on topics discussed in this post, including litigation, contact the Law Offices of Peter J. Lamont at our Bergen County Office. We're here to answer your questions and provide legal advice. Contact us at (201) 904-2211 or email us at  info@pjlesq.com.

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About Peter J. Lamont, Esq.

Peter J. Lamont is a nationally recognized attorney with significant experience in business, contract, litigation, and real estate law. With over two decades of legal practice, he has represented a wide array of businesses, including large international corporations. Peter is known for his practical legal and business advice, prioritizing efficient and cost-effective solutions for his clients.

Peter has an Avvo 10.0 Rating and has been acknowledged as one of America's Most Honored Lawyers since 2011. 201 Magazine and Lawyers of Distinction have also recognized him for being one of the top business and litigation attorneys in New Jersey. His commitment to his clients and the legal community is further evidenced by his active role as a speaker, lecturer, and published author in various legal and business publications.

As the founder of the Law Offices of Peter J. Lamont, Peter brings his Wall Street experience and client-focused approach to New Jersey, offering personalized legal services that align with each client's unique needs and goals​.

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