Bobby Malhotra Discusses Tensions Between Discovery Requirements and Consumer Privacy Rights Bloomberg Law

Winston & Strawn partner Bobby Malhotra was quoted in a Bloomberg Law article discussing the OpenAI Inc. copyright lawsuit and legal debate over how to balance a court’s need for information against protecting individuals’ personal data. OpenAI has been challenging a court order to preserve its ChatGPT outputs in a precedent-setting copyright case, claiming the order threatens hundreds of millions of its users’ privacy rights. The first of its kind case will show how courts will weigh legal questions against protecting the privacy of large amounts of personal information in AI-related litigation. 

“It’s a vivid illustration of the new legal and operational challenges posed by AI in the context of discovery, privacy, and proportionality,” Bobby said. 

The case will now test how the courts apply proportionality to large language models. While data volumes have been increasing for years, AI tools are “generating data at unprecedented volumes,” Bobby said. “We’re seeing this in all facets of discovery, but it is something that is really being brought to the spotlight because of AI,” he added.

Tensions with companies’ privacy promises to consumers and compliance with regulatory frameworks will likely continue to increase. In the absence of rule updates, companies will have to explore alternative ways to mitigate privacy and cybersecurity concerns.

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