The duty to preserve documents: GenAI, litigation holds and the disclosure minefield

Generative AI (GenAI) is a rapidly developing area which presents both opportunities and potential pitfalls at all stages of litigation. With these new risks and challenges, the approach of the courts and practitioners is still evolving.

Recent cases have emphasised the risk of GenAI “hallucinations” and threats to privilege. For example, in R (Ayinde) v Haringey London Borough Council [2025] EWHC 1383 (Admin), the court gave guidance on the professional duties owed by legal practitioners when using AI for legal research in the context of two cases involving the citation of cases that did not exist. In Cork v Smith [2026] EWHC 1199 (Ch), the High Court criticised a law firm and two of its supervising solicitors after a junior associate used the firm’s GenAI tool to draft court correspondence which included a non-existent statutory provision - a hallucination that was compounded by a subsequent attempt by the solicitors to explain it away in a further misleading letter. In UK v Secretary of State for the Home Department [2026] UKUT 81 (IAC), under its ‘Hamid’ jurisdiction, the Upper Tribunal considered the conduct of legal practitioners against professional standards in the context of GenAI, and also issued a reminder that uploading confidential client materials into a public GenAI tool (e.g. ChatGPT), placed that information in the public domain, thereby breaching client confidentiality and risking waiver of privilege.

However, hallucinations and threats to privilege are not the only potential GenAI related pitfalls during litigation. The duty to preserve documents (including electronic documents) in litigation is increasingly complicated by the widespread use of GenAI tools in the workplace. Employers who fail to grasp this issue risk falling foul of their document preservation obligations, which can have serious consequences.

This article looks at the fundamentals of document preservation in England & Wales, and how this interacts with the use of GenAI tools in the workplace.

What is a litigation hold?

A litigation hold (sometimes called a preservation notice) is a notice detailing the practical steps to be taken to comply with the duty to preserve documents that may have to be disclosed in legal proceedings (actual or anticipated). In England and Wales, a wide range of documents are potentially disclosable, including those that adversely affect a party’s own case.

The duty to preserve documents

The duty to preserve disclosable documents arises as soon as litigation is in contemplation and solicitors are required to notify their clients of this under Practice Direction 31B (PD 31B), paragraph 7. This includes electronic documents that would otherwise be deleted under a document retention policy or in the ordinary course of business.

For claims proceeding in the Business and Property Courts, Practice Direction 57AD (PD 57AD) sets out this preservation duty in more detail. For instance, it specifies that reasonable steps include:

suspending relevant document deletion or destruction processes for the duration of the proceedings,
sending written notification to relevant employees and former employees identifying the documents to be preserved, and
taking reasonable steps to prevent agents or third parties from deleting or destroying potentially relevant documents held on the party's behalf.

This duty to preserve documents continues throughout the litigation until the proceedings are concluded.

In Employment Tribunal proceedings, there is no equivalent express duty to preserve documents as set out in PD 31B and PD 57AD. However, there is an implied duty as a result of the requirement to disclose relevant documents pursuant to tribunal orders made under Rule 30 of the Employment Tribunal Procedure Rules 2024, combined with the overriding objective to deal with cases fairly and justly.

What is the purpose of a litigation hold?

The primary purpose of operating a litigation hold is to ensure that potentially disclosable documents are not lost or destroyed. Failure to preserve disclosable documents once the duty to preserve has arisen can have severe consequences. Where a failure to preserve documents has caused prejudice, courts have imposed costs penalties, drawn adverse inferences, ordered forensic recovery of deleted data and, in serious cases, struck out claims or defences. For example, the EAT upheld the Employment Tribunal’s decision to strike out of a remedy claim in Kaur v Sun Mark Ltd [2024] EAT 41 following the claimant’s destruction of evidence contained on a mobile phone and in a notebook after the liability hearing.

What does the duty to preserve documents usually require in practice?

In practice, discharging this duty by operating a litigation hold often involves (among other things) suspending routine document destruction policies (both for hard copy and electronic documents) and taking active steps to ensure potentially relevant material is not lost, altered or deleted, including by issuing instructions to IT departments, third party vendors and preserving metadata. A classic example of where this can easily go wrong is when an employee returns their devices at the end of employment and they are automatically wiped by IT, rather than being preserved, in cases where litigation is in contemplation.

Solicitors must properly explain to clients their duty to preserve documents

The importance of ensuring a party understands the duty of preservation was underlined in Provimi France SAS v Stour Bay Co Ltd [2022] EWHC 218 (Comm). In this case, potentially relevant documents were permanently deleted in accordance with a document retention policy. An in-house lawyer, who was unfamiliar with procedure in common law jurisdictions, failed to put a litigation hold in place as they had misunderstood or failed to appreciate the advice given as to the types of documents that should be retained. The decision emphasises that in-house lawyers unfamiliar with English disclosure rules must fully understand their obligations and that issuing an instruction to retain relevant documents without ensuring an understanding of what “relevant” means is not enough.

The duty of disclosure and internal GenAI tools

The duty of disclosure extends to a wide range of electronic documents. “Document” is defined in CPR 31.4 as “anything in which information of any description is recorded” and extends to “electronic documents”. This includes emails and other material held on computer systems, servers, back-up systems and other electronic devices or media. The broad definition of "document" extends the preservation duty to GenAI tools and, where relevant, this could include prompts, outputs, chat history and system logs.

Provimi emphasises the importance of ensuring that parties fully understand the extent of their document retention obligations and therefore, as GenAI usage continues to evolve, understanding how GenAI “documents” may be relevant in disclosure.

As yet, we are not aware of any case law dealing with the specific issue of document preservation in the context of GenAI. However, in a recent interim report and consultation, the Civil Justice Council noted the following in the context of AI usage in disclosure exercises:

The use of AI, involving detailed prompts, is likely to give rise to its own particular issues (including the extent to which the disclosure of prompts, together with the testing and refinement of those prompts, and the sample documents on which the prompts were tested, is required).

(Use of AI for Preparing Court Documents, Interim Report and Consultation, February 2026)

In the US, the courts have considered the discoverability of GenAI prompts, outputs and chat history in the context of privilege protection. For example, in US v Heppner, 2026 WL 436479 (SDNY Feb.17, 2026) the disclosure of prompt and response records created using a public GenAI tool was required on the basis that these could not be withheld under attorney-client privilege or the work product doctrine. Conversely in Warner v Gilbarco, Inc., No. 2:24-cv-12333, 2026 WL 373043 (E.D. Mich. 10 February 2026) a pro se litigant’s GenAI prompts and outputs were withheld from discovery under the work product doctrine.

As employers continue to scale up usage of GenAI tools in the workplace, this creates an easily overlooked category of documents to preserve, especially in relation to GenAI prompt and output logs. Where external providers are involved, prompt and output logs may not sit within the systems that IT teams or legal representatives instinctively think to preserve. Additionally, they may not be readily accessible to employers, unlike a conventional email account or shared drive. They may also be subject to shorter retention settings, automatic deletion, or storage on the AI vendor's own infrastructure rather than the employer's.

If a litigation hold does not expressly extend to these GenAI systems, there is a real risk that relevant material is lost through the ordinary operation of a retention policy. This may expose employers to the risks identified above.

Employers should therefore treat internal GenAI platforms as another data source to be identified and captured when a litigation hold is put in place. In practice, this means identifying who has access to internal GenAI tools, understanding how prompt and output data is stored and for how long, and ensuring that any automatic deletion or retention settings for that data are suspended once litigation is contemplated.

The impact of the use of unapproved GenAI tools on disclosure

With the explosion of access to public open-source GenAI tools, employers are increasingly facing difficulties arising from employees using unauthorised GenAI tools in their day-to-day work but also in the context of grievances and disputes. The prompt and output data for unapproved GenAI tools will often not fall within an employer’s document preservation obligations in the context of litigation, unless stored on devices within the employer’s control, but they can create significant confidential information risks. This emphasises the importance for employers to ensure that they have clear policies in place concerning acceptable usage of GenAI tools in the workplace and that this is mapped appropriately.

Practical takeaways for employers

Give careful thought to the authorised usage of GenAI tools in the workplace (including understanding how they are currently used, restrictions on using public open-source GenAI tools and who has access to any internal GenAI tools).
Consider introducing a GenAI policy that explains, among other things, how GenAI should and should not be used in the workplace, particularly in relation to confidential information.
Take the time to understand how prompt and output data from internal GenAI tools is stored and how this can be accessed. Where third party AI vendors are involved, ensure that litigation hold instructions can be effectively put in place when required.
Work closely with legal advisers when scoping a disclosure process to implement effective litigation holds and comply with document preservation obligations in the context of GenAI usage.