In one case, documents created using an AI tool were not protected because there was ‘no reasonable expectation of confidentiality’; in another, protection survived as disclosure was not to an adversary.
The analysis underscores a key risk: using public AI tools may amount to publishing information ‘to all the world’.
English courts are likely to take a similarly fact-specific approach, focusing on privacy expectations and tool settings. The warning is blunt—AI is ‘different’, and without careful governance, organisations may inadvertently waive privilege.




