Navigating Recent Developments in Generative AI and Trade Secret Protection

“Trinidad and Heppner mark the beginning of what will likely be an extended period of judicial development at the intersection of generative AI and trade secret law.” Two recent federal district court decisions highlight the significant risks of sharing confidential information with a generative AI platform. In Trinidad v. OpenAI, the court dismissed the plaintiff’s trade secret claims under the Defend Trade Secrets Act (DTSA) because the plaintiff had voluntarily disclosed her allegedly proprietary frameworks to OpenAI while using ChatGPT to create them. Then, Judge Rakoff in United States v. Heppner held that documents created using publicly available generative AI are not protected by the attorney-client privilege—in part because communications memorialized through an AI platform are not confidential when the platform is not contractually bound to keep them secret. Taken together, Trinidad and Heppner are among the first decisions to establish that confidential information shared with a public AI platform is not legally protected. While this result should not surprise practitioners familiar with the foundational principles of trade secret and privilege law, it underscores the urgency for trade secret owners to assess their AI-related exposure. Before turning to the specifics of these two cases, several other issues concerning generative AI and trade secret law warrant general mention. Generative AI and ‘Readily Ascertainable’ Among the essential requirements to qualify ...