This program will examine key strategies for safeguarding privileged information, including the use of clawback agreements and Rule 502(d) orders, the application of the Kovel doctrine in relationships with third-party consultants, and how conduct between parties affects the applicability of the common interest privilege and functional equivalent doctrine. We will also address the unique privilege challenges posed using artificial intelligence, including selecting appropriate AI tools, implementing technical safeguards, issuing AI usage guidelines, and managing privilege concerns related to AI-generated prompts in the discovery process.

Key topics to be discussed:

• How tools like clawback agreements and Rule 502(d) orders help protect against waivers
• Whether the Kovel doctrine may apply to relationships with third-party consultants and what factors govern its application
• How parties’ course of conduct determines whether the common interest privilege or functional equivalent doctrine apply to prevent waivers
• Protecting privileged Information when using AI tools
• Privilege considerations related to AI prompts in the discovery context