What Plaintiffs and Defendants Need to Know About AI Chat Discoverability

You asked ChatGPT about your car accident injuries. You described your symptoms to an AI chatbot to figure out if you had a case. Maybe you even asked an AI tool to estimate what your claim might be worth.

Now imagine a defense attorney demanding access to every one of those conversations.

It’s not hypothetical. As artificial intelligence tools like ChatGPT, Google Gemini, and Microsoft Copilot become part of everyday life, courts across the country are beginning to grapple with a question that didn’t exist five years ago: Are your private AI conversations discoverable in litigation?

At Proffitt & Cox, we’re watching this issue closely — because the answer could affect every personal injury case in South Carolina.

What Does “Discoverable” Mean?

In a lawsuit, both sides have the right to request relevant information from the other party through a process called discovery. Under the South Carolina Rules of Civil Procedure (Rule 26(b)(1)), parties may obtain discovery of any matter that is:

“…relevant to the subject matter involved in the pending action… [and] reasonably calculated to lead to the discovery of admissible evidence.”

Discovery is intentionally broad. It covers documents, emails, text messages, social media posts, medical records — essentially anything that could be relevant to the claims or defenses in the case.

The question is whether your AI chat logs fall into that category.

Why AI Conversations Could Be Fair Game

When you type a question into ChatGPT or any AI tool, you’re creating a record. Depending on the platform, that record may be:

• Stored on the company’s servers (OpenAI retains ChatGPT conversations unless you disable chat history)
• Synced to your account and accessible from any device
• Backed up in cloud storage tied to your Google, Microsoft, or Apple account
• Logged in your browser history even if the platform doesn’t save it

From a legal standpoint, these conversations are electronically stored information (ESI) — the same category that covers emails, text messages, and social media data. South Carolina courts have consistently held that ESI is discoverable when relevant.

The Relevance Problem

Here’s where it gets dangerous for plaintiffs. Suppose you:

• Asked an AI chatbot to describe symptoms of whiplash — and the description doesn’t match what you told your doctor
• Used AI to research “average settlement for rear-end collision” — suggesting you were focused on money rather than recovery
• Told an AI tool that your injuries “aren’t that bad” while simultaneously claiming severe pain and suffering in your lawsuit

Any of these could be used by a defense attorney to attack your credibility, challenge the severity of your injuries, or argue that your claimed damages are exaggerated.

What South Carolina Law Says (So Far)

As of early 2026, no South Carolina appellate court has issued a published decision specifically addressing AI chat discoverability. But the existing legal framework already governs how courts treat electronic data:

The Scope of Discovery Is Broad

Under S.C. R. Civ. P. 26(b)(1), relevance is construed liberally. Courts routinely allow discovery of electronic communications — including text messages, direct messages on social media, and even data from fitness trackers and smart devices. AI conversations are a natural extension of that principle.

Spoliation Rules Apply

If you delete your AI chat history after litigation begins (or after you reasonably anticipate litigation), you could face spoliation sanctions under Rule 37. South Carolina courts take evidence preservation seriously.

In Stokes v. Spartanburg Reg’l Med. Ctr., 368 S.C. 515, 629 S.E.2d 675 (Ct. App. 2006), the South Carolina Court of Appeals held that when a party fails to preserve material evidence, the jury may draw an adverse inference — and courts may impose additional sanctions including monetary penalties or, in egregious cases, default judgment.

This means: If you’re in a lawsuit or expect to be, do NOT delete your AI conversations. Doing so could result in adverse inference instructions, monetary sanctions, or even default judgment.

Third-Party Subpoenas

Even if you delete conversations from your device, the AI company may still have them. Defense attorneys can issue subpoenas duces tecum to companies like OpenAI, Google, or Microsoft under S.C. R. Civ. P. 45, demanding production of your chat logs. Whether these companies will comply is still an evolving question — but the legal mechanism exists.

The Attorney-Client Privilege Question

One critical nuance: Conversations with AI are almost certainly NOT protected by attorney-client privilege.

Attorney-client privilege protects confidential communications between a client and their attorney (or the attorney’s agents) made for the purpose of obtaining legal advice. An AI chatbot is not an attorney. It’s not licensed, it doesn’t owe you a duty of confidentiality, and it cannot form an attorney-client relationship.

This means that even if you asked ChatGPT a legal question — “Do I have a personal injury case?” — that conversation is not privileged and could be fully discoverable.

South Carolina courts have been clear that privilege is narrowly construed. In Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984), the South Carolina Court of Appeals emphasized that the privilege applies only to communications made in confidence to an attorney for the purpose of obtaining legal advice, and that voluntary disclosure of those communications to a third party waives the privilege entirely. Typing your symptoms into a chatbot doesn’t qualify — there is no attorney, no confidential relationship, and no privilege to claim.

The Mata v. Avianca Warning: Courts Are Paying Attention

The legal community got its first high-profile wake-up call on June 22, 2023, when a federal judge in New York imposed sanctions on attorneys who submitted a brief containing fabricated case citations generated by ChatGPT in Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023).

While that case involved attorney use of AI, the message is clear: courts expect accountability for AI-generated content. It’s only a matter of time before a South Carolina court faces a case involving AI chat discoverability in a personal injury context.

Practical Advice for South Carolina Plaintiffs

If you’re involved in — or even considering — a personal injury claim, here’s what our attorneys recommend:

1. Assume Everything You Type Is Discoverable

Treat AI conversations the same way you’d treat a text message to a friend. If you wouldn’t want a defense attorney reading it in open court, don’t type it into ChatGPT.

2. Don’t Use AI to Self-Diagnose or Research Your Case Value

We understand the temptation to Google your symptoms or ask an AI chatbot what your case might be worth. But these searches create a paper trail that can be used against you. Talk to your attorney instead — those conversations ARE privileged.

3. Don’t Delete Anything Once You Anticipate Litigation

If you’ve already had AI conversations about your injuries, do not delete them. Spoliation of evidence can be far more damaging to your case than whatever the conversations contain.

4. Review Your AI Platform Settings

Most platforms allow you to disable chat history or auto-delete conversations. If you haven’t filed a lawsuit yet and aren’t anticipating one, you may want to adjust these settings proactively. But once litigation is on the horizon, preservation duties kick in.

5. Tell Your Attorney About Your AI Usage

If you’ve discussed your injuries, accident, or legal situation with an AI tool, tell your lawyer. We’d rather know about it early and prepare a strategy than be blindsided during discovery.

The Bottom Line

Your conversations with AI are not private. They’re not privileged. And in a South Carolina personal injury case, they could be discoverable.

The safest approach? Keep your AI conversations casual, don’t discuss your injuries or legal claims with chatbots, and talk to a real attorney when you need legal advice.

At Proffitt & Cox, we’ve been protecting South Carolina injury victims for over fifty years. If you’ve been hurt and need guidance — not from a chatbot, but from experienced trial lawyers — call us at (803) 834-7097 for a free consultation.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every case is different. If you have questions about your specific situation, contact an attorney.