Extract from Melissa Weberman’s article “Courts Are Starting To Define What “AI Discovery” Means”
As companies increasingly rely on generative AI tools to assist with research, writing, coding, and other business functions, opposing parties in litigation have begun to seek that data in discovery. Lawyers are now grappling with new questions: Are AI prompts and outputs discoverable? What about logs, settings, or other data showing how an AI tool was used? A recent court decision sheds light on these emerging issues.
On September 19, 2025, the U.S. District Court for the Southern District of New York issued an important ruling in one of the most closely watched AI-related cases in the country: In re OpenAI Inc. Copyright Infringement Litigation, brought by The New York Times against OpenAI and Microsoft. The case, part of a broader wave of copyright lawsuits against AI companies, raises questions about how these technologies use copyrighted material to train and generate content.
The SDNY’s September ruling confirms something important for all litigants: Ordinary discovery rules still apply to AI data. The court refused to compel The New York Times to produce prompts and outputs from its internal AI tool, finding the request not relevant to the core copyright issues and, even if it were, not proportional given the review burden (tens of thousands of entries and significant privilege review time and cost).
