Before You Hit ‘Record’: Legal Risks In Using AI Notetaking Tools

You may have asked a team member or associate to jot down notes during a Zoom call, only to find that they struggled to capture every key point while also actively participating in the discussion. Or perhaps you aimed to document a high-level conversation around a strategic initiative yourself, but the dialogue between colleagues moved too quickly for your pen to keep up. In these scenarios, AI notetaking tools like Otter.ai and Fireflies.ai offer a compelling solution. These platforms not only transcribe conversations but also generate summaries and analysis of the meeting’s content.

However, before deploying such tools in your organization, it’s important to weigh potential legal implications and implement clear policies for their usage and storage. Below, I review a few things to consider before allowing AI notetakers into your conversations.

What Are AI Notetakers?

AI notetakers utilize generative AI to go beyond basic transcription. These tools can identify speakers, summarize discussions, highlight key points, generate action-item lists, and even incorporate visual aids or charts. While they share similarities with traditional recording and transcription software, AI-based tools offer enhanced capabilities.

These capabilities raise new questions about legal exposure, particularly around whether the data they generate could become discoverable evidence in future litigation.

What Makes Something “Discoverable”?

Discovery is the legal process during which both sides of a lawsuit share relevant information regarding the matter at hand. It ensures transparency and helps each party prepare for an eventual trial, or a potential settlement. Discovery can take several forms, most commonly depositions, where parties and witnesses are questioned under oath; interrogatories, where parties answer targeted questions regarding the proceedings; and document production, where parties provide copies or originals of documents relevant to the matter.

Generally, any non-privileged material relevant to the case—whether it supports a claim or a defense—may be subject to discovery. This includes physical documents, digital files, and other electronically stored information (ESI), such as notetaker AI generated information. Even if the content wouldn’t be allowed in court, it may still be discoverable if it’s reasonably likely to lead to admissible evidence.

Privileged material excluded in discovery generally includes communications between an attorney and client, as well as communications between a patient and his/her doctor. Other examples include spousal communications, and in some states, communications between reporters and their sources. The purpose of these privileges is to protect confidential relationships that are crucial for effective communication and legal representation.

What Issues Do AI Notetakers Present?

It’s easy to fall into the habit of using an AI notetaker for every meeting, but unlike human-generated notes, which can fall under the protections of attorney-client privilege or other confidentiality safeguards, AI-produced content could be seen as a neutral document and easily discoverable by opposing parties during legal proceedings. This creates the possibility that private conversations, strategies, or sensitive details captured by the AI could be accessed and used against a party in court.

Additionally, since AI systems may lack human oversight, there is a higher risk of inaccuracy, bias, or manipulation in the notes, further complicating their admissibility and reliability as evidence. Unlike notes taken by a human, AI notetaking software cannot be placed on the stand and questioned by an attorney or judge. Unlike a human witness, the software cannot recall or explain how it came to the conclusions written.

Another significant concern is that the use of AI notetakers can inadvertently increase the scope of discoverable material. Many organizations don’t realize that the mere act of recording and transcribing a meeting—particularly if done automatically and stored by a third-party service—can create a comprehensive and timestamped record that wouldn’t otherwise exist. In litigation, this level of detail can become a liability. All of these transcripts, metadata, and any analytical outputs produced by the AI may be sought after by opposing counsel, effectively providing them insight into internal deliberations, decision-making processes, and strategic planning. This risk is exacerbated if the AI service provider lacks strong data governance policies or is located in a jurisdiction with different discovery or privacy standards.

Questions to Consider Before Using AI Notetakers

Would you be uncomfortable recording the meeting with traditional audio or video equipment?

Could the contents of your conversation fall within one of the privileges? Could the presence of a third party remove those privileges?

Could the nature of the AI’s creation process (automated, algorithmic, non-human) lead to objections on the grounds of authenticity or relevancy?

If any of the above are answered in the affirmative, you likely should not be using the AI notetaking software, as it could greatly expand the amount of discoverable information and data that could fall into the hands of an opposing party.

Additional things to consider may be:

Would the AI system create metadata that courts find reliable, or is there a risk that the lack of detailed audit logs could lead to disputes about the integrity of the notes?

What are the consequences of the AI-generated notes being challenged for factual inaccuracy or misrepresentation?

The answers to these additional considerations should lead your decision. While there may be situations in which AI’s lack of reliability and credibility might help your case, do you, and your client, want to spend the time and money to go through the hassle of making these determinations throughout litigation on a completely different matter? If not, the use of AI notetakers is likely not the direction you want to be going.

Conclusion

In an era where convenience often comes at the cost of control, AI notetakers present both powerful benefits and significant legal risks. Organizations should carefully evaluate how these tools are used and ensure that appropriate safeguards are in place before inviting them into sensitive conversations.

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This DarrowEverett Insight should not be construed as legal advice or a legal opinion. This Insight is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. Please reach out to us if you need help addressing any of the issues discussed in this Insight, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

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