AI note takers are becoming a staple in the modern workplace. With one click, tools like Otter.ai, Microsoft Copilot, and Zoom My Notes transcribe every word of a meeting—half-finished thoughts, offhand comments, bad jokes, and all. Executives love the increase in efficiency. Corporate lawyers are rightfully wary of the impact.
However, the main concern about AI note taker usage is not productivity; it is discovery.
Everything Gets Captured
Human note-takers exercise judgment. They summarize. They omit tangents and remarks that a speaker immediately walked back. AI transcription tools do not. They record everything with no discretion, and they do so in meetings that might otherwise leave no written record at all, which can create issues like in the following examples.
- Every word uttered can become discoverable in litigation or a government investigation.
- An executive talking through an acquisition who offhandedly says it will help the company “dominate” the category has now created an issue if an antitrust case comes up.
- A board member who casually acknowledges a business risk may have handed future opposing counsel a potential argument.
The Privilege Problem
The risks surrounding AI note takers compound when legal counsel is in the room. Attorney-client privilege protects confidential communications between a lawyer and a client made for the purpose of obtaining legal advice. That protection can be waived by voluntary disclosure to a third party. Courts are beginning to grapple with whether the use of AI platforms qualify as voluntary disclosure to a third party.
The answer remains unsettled, but the trend is not encouraging. Federal courts have split on the question. In February, Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York ruled that a defendant who used an AI platform to seek legal advice had no privilege because the platform’s terms of service expressly authorized it to share user data with third parties, including government regulators. United States v. Heppner, 820 F. Supp. 3d 292 (S.D.N.Y. 2026). Also in February, Judge Gershwin A. Drain of the Federal District Court in Detroit reached the opposite result, rejecting the argument that submitting information to an AI tool was tantamount to disclosure to a third party. Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026).
The legal framework underlying these decisions is well established: under longstanding federal precedent, voluntary disclosure to a non-agent third party destroys confidentiality and waives privilege unless the disclosure was necessary to obtain informed legal advice. The open question is how that rule applies to AI platforms, particularly those whose terms of service reserve the right to reuse and share user inputs.
That is not a theoretical concern. A client who copies their lawyer’s advice into ChatGPT to better understand it or to plan their next questions, may have just waived the privilege over that advice. The client’s intent does not necessarily save them. The disclosure itself is what matters.
What To Do About It
The New York City Bar Association has urged lawyers to evaluate whether recording and transcribing a meeting is “tactically well advised” in context, and to advise clients of the risks. That guidance applies equally to AI note-takers in any sensitive meeting and to clients who use AI tools to process privileged communications.
Practically, companies should establish a clear policy now, before any litigation arises, that specifies which meetings are recorded, where transcripts are stored, who can access them, and what gets deleted. Employees and executives should also understand that feeding privileged communications into consumer AI tools carries real legal risk, regardless of the purpose for doing so.
If you have questions about litigation exposure, document retention, or protecting privilege in an AI-forward workplace, please reach out and let us know how we can help.
BFV summer associate Nikita Patel, a student at Emory University School of Law, contributed to this post.
Work hard at work worth doing. This is what drives Daniel Park in every aspect of his life. At Berman Fink Van Horn, Daniel demonstrates this in everything he does.
