Anything You Say To ChatGPT Can Be Used Against You
A chatbot conversation may feel informal or private. In litigation, it can become part of the record used to evaluate a company’s motives, credibility, and conduct, as a case out of Delaware reminds us.
South Korean gaming conglomerate Krafton Inc. acquired the video game studio Unknown Worlds for $500 million upfront, plus up to $250 million in contingent earnout payments. The acquisition agreement protected the operational control of three key executives and limited Krafton’s ability to terminate them.
Projections indicated that a substantial earnout would become payable. So instead of paying the contractual earnout, Krafton’s CEO turned to ChatGPT. According to the opinion, he sought guidance on how to proceed if Krafton could not negotiate a deal over the earnout. The chatbot proposed a strategy that included preemptive public messaging, securing control of publishing access, and assembling materials for a legal defense. The court found that Krafton “followed most of ChatGPT’s recommendations.”
Those exchanges, reflected in the trial record and internal communications, helped document the planning behind Krafton’s actions. The court ultimately found that Krafton had terminated the executives without valid contractual cause and improperly seized operational control of the studio. The remedy included reinstating Unknown Worlds’ CEO, restoring his operational authority and access to the Steam publishing platform, and extending the earnout measurement period. The court reserved remaining earnout and damages issues for a later phase.
AI is evidence. Prompts, responses, and discussions of AI-generated recommendations may help explain why a company acted—and whether its contemporaneous plans match its later explanation.
Your communication with AI is probably not privileged. This decision did not resolve the boundaries of privilege for AI communications. Businesses should address those questions with counsel before using AI to analyze a sensitive dispute.
Deleting a chat does not erase the surrounding record. The opinion notes that Krafton’s CEO admitted deleting relevant ChatGPT logs. Internal messages nevertheless preserved information about his exchanges and the resulting strategy.
Preservation procedures should account for AI use. When implementing a litigation hold, counsel should investigate relevant chatbot accounts, retained conversations, and copies or summaries shared through messaging platforms and email. Relevant material may exist beyond the company’s usual document repositories. And when issuing a litigation hold, consider including these categories.