AUGUST 2026 | 63 THE OKLAHOMA BAR JOURNAL AI Companion, Teams, Otter, Fireflies or similar tools. Please let us know what tools you used and whether you can access or export the related history. This instruction serves two purposes. It helps prevent spoliation arguments, and it helps the lawyer assess whether any AI materials should be collected, reviewed, withheld as privileged, logged or produced. Preservation can be technically challenging. Some AI tools allow users to delete conversations. Some allow chat history to be turned off. Some retain data for a limited time. Some store uploaded files separately from chat text. Some meeting tools generate recordings, transcripts and summaries in different locations. Clients may not know where these materials are stored or whether they still exist. The lawyer may need to work with the client, IT personnel or an e-discovery professional to understand the relevant sources. Lawyers should also be cautious about advising clients to delete AI materials. A general instruction to stop using AI going forward is very different from an instruction to delete past AI conversations. Once litigation is pending or reasonably anticipated, deletion may create avoidable risk. The better practice is to preserve first, then analyze relevance, privilege and work product. MAKE AI PART OF THE CLIENT CONVERSATION The rise of client AI use is not just a technology issue. It is a client communication issue. Clients need guidance in plain language. Many clients will not understand the difference between asking a friend, searching Google, using a legal self-help website and uploading documents into a generative AI chatbot. Lawyers are in the best position to explain why those differences matter. This is also a risk-management issue. A lawyer who never asks about AI use may later learn that the client has uploaded sensitive information, created damaging summaries, relied on incorrect legal conclusions or deleted relevant AI conversations. By contrast, a lawyer who asks early, gives clear instructions and addresses preservation has a much better chance of protecting the client and managing the representation competently. Clients are going to use AI. Lawyers should assume that some already have. The firms that handle this well will not be the firms that pretend AI use is not happening. They will be the firms that make it part of competent client counseling. Ms. Bays is the OBA Management Assistance Program director. Need a quick answer to a tech problem or help solving a management dilemma? Contact her at 405-416-7031, 800-522-8060 or julieb@okbar.org. It’s a free member benefit. ENDNOTES 1. United States v. Heppner, No. 1:25-cr-00503JSR, ECF No. 27, at 1 (S.D.N.Y. Feb. 17, 2026), available at CourtListener. https://bit.ly/4fo4rAw; Further reading and analysis see Elizabeth X. Guo, United States v. Heppner, Harv. L. Rev. Blog (Mar. 23, 2026). https://bit.ly/4ynFf5E. 2. New York City Bar Association Presidential Task Force on Artificial Intelligence and Digital Technologies, The Intersection of Artificial Intelligence, Privacy, and Privilege (June 10, 2026). https://bit.ly/4bpTJrW. 3. See N.Y.C. Bar Ass’n Comm. on Prof’l Ethics, Formal Op. 2025-6, https://bit.ly/3RFJhG7. 4. Fortis Advisors, LLC v. Krafton, Inc., C.A. No. 2025-0805-LWW, slip op. at 3, 34–38, 124–25 (Del. Ch. Mar. 16, 2026), https://bit.ly/3TDqY4U. 5. See also Jonathan A. Dhanawade, Frank J. Favia Jr. & Andrew J. Stanger, “How a Buyer’s AI Conversations Sank Its Earnout Avoidance Strategy,” Harv. L. Sch. F. on Corp. Governance (Apr. 20, 2026), https://bit.ly/4wKz3mL.
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