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New Frontiers in Spoliation: Preserving AI Records in Litigation

By Garen S. Marshall, Ashley Matthews, Davis M. Walsh, Alice Moscicki & Louis O.C. Rogers on August 7, 2026
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The explosion of generative AI in the workplace has created a new and largely unaddressed category of litigation risk. In May 2025, a federal court in the Southern District of New York ordered OpenAI to preserve and segregate all ChatGPT output log data that would otherwise be destroyed under its default 30-day deletion policy, marking one of the first judicial orders to treat AI-generated content as electronically stored information subject to legal holds, i.e., the obligation to preserve potentially relevant evidence once litigation is reasonably anticipated. The order, issued over OpenAI’s objections grounded in user privacy and regulatory compliance, signals that courts will expect litigants to preserve AI artifacts with the same rigor applied to email, documents and structured data.

Read on for an analysis of how existing discovery rules already reach AI-generated content, the sanctions companies may face for failing to preserve it and the practical steps clients should take now to close the gap.

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Tags: AI
Photo of Garen S. Marshall Garen S. Marshall

Garen Marshall is a partner in McGuireWoods’ Government Investigations and White Collar Litigation Department and leads the firm’s Artificial Intelligence Practice Area. A former Assistant United States Attorney in the Eastern District of New York and Navy special operations veteran, he represents corporations…

Garen Marshall is a partner in McGuireWoods’ Government Investigations and White Collar Litigation Department and leads the firm’s Artificial Intelligence Practice Area. A former Assistant United States Attorney in the Eastern District of New York and Navy special operations veteran, he represents corporations, executives, and boards in government and internal investigations, regulatory enforcement matters, and complex civil litigation, with a practice that extends to AI governance, AI-related enforcement and litigation risk, and corporate compliance issues involving artificial intelligence.

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Photo of Ashley Matthews Ashley Matthews

Ashley assists companies and financial institutions in complying with laws applicable to consumer and business-purpose financial services, payments, privacy and cybersecurity, artificial intelligence, and governance matters.

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Photo of Davis M. Walsh Davis M. Walsh

Davis M. Walsh is a trial lawyer who focuses on high-stakes litigation for public and private companies, along with advising clients on the legal and litigation risks surrounding the adoption of artificial intelligence. Davis is known for taking on cases that are critical…

Davis M. Walsh is a trial lawyer who focuses on high-stakes litigation for public and private companies, along with advising clients on the legal and litigation risks surrounding the adoption of artificial intelligence. Davis is known for taking on cases that are critical to clients — from bet-the-company product liability trials to complex mass tort litigation — and for bringing the kind of creative, jury-focused strategy that wins them.

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Photo of Alice Moscicki Alice Moscicki

Alice is an associate in the firm’s Labor & Employment Department. She is experienced with counselling clients on compliance with a variety of local, state, and federal employment laws, with a focus on reputational risk management. Alice is heavily involved with McGuireWoods’ emerging…

Alice is an associate in the firm’s Labor & Employment Department. She is experienced with counselling clients on compliance with a variety of local, state, and federal employment laws, with a focus on reputational risk management. Alice is heavily involved with McGuireWoods’ emerging, cross-functional artificial intelligence practice.

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Photo of Louis O.C. Rogers Louis O.C. Rogers

Louis focuses his practice on representing publicly traded and private companies in the energy, transportation, construction, and manufacturing sectors facing complex environmental and mass-tort litigation—particularly cases arising from catastrophic incidents—in both federal and state courts.

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  • Posted in:
    E-Discovery, Technology and AI
  • Blog:
    Password Protected
  • Organization:
    McGuireWoods LLP
  • Article: View Original Source

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