By Lara Shortz, Office Managing Partner
Michelman and Robinson, LLP
If your company uses generative Al tools in connection with legal advice, litigation strategy, or internal investigations, a new federal court decision demands immediate attention. Last week, the U.S. District Court for the Southern District of New York held that communications with a publicly available Al platform are not protected by the attorney-client privilege or the work product doctrine. Translation: information you share with an Al tool may have to be produced in discovery, even if it relates to legal strategy and is later provided to counsel. The decision, United States v. Heppner, is the first to address whether Al communications can be shielded by traditional privilege protections. Although the case arose in the criminal context, the court’s reasoning rests on long-standing principles that apply broadly and are likely to influence courts nationwide. For companies increasingly integrating Al into daily operations, the implications are significant. Here is what you need to know.
THE CASE AT A GLANCE
After receiving a grand jury subpoena and learning he was the target of a criminal investigation, the defendant in Heppner used the Al platform “Claude” to generate approximately 31 documents outlining potential defenses and legal analysis. The government later seized those materials pursuant to a search warrant. The defendant then asserted that the documents were protected by both the attorney-client privilege and work product doctrine. The court disagreed.
ATTORNEY-CLIENT PRIVILEGE: WHY IT FAILED
Judge Jed S. Rakoff determined that while the attorney-client privilege protects confidential communications between a client and a lawyer for the purpose of obtaining legal advice, the Al communications at issue did not satisfy that standard. His reasoning was based on the following: (1) the Al platform was not a lawyer, (2) the communications were not confidential, and (3) the defendant was not seeking legal advice from the Al. More specifically, Judge Rakoff explained a public Al platform is no substitute for a confidential relationship with a licensed attorney subject to fiduciary duties and professional discipline. He also determined that (1) Claude’s privacy policy permitted collection, retention, use for training, and potential disclosure of user inputs and outputs, including to third parties and governmental authorities, and (2) because the Al system was not a closed environment, the defendant had no reasonable expectation of confidentiality, and without confidentiality, privilege cannot attach. In addition, the fact that the defendant intended to later share the Al-generated materials with his lawyer did not matter. The relevant question, according to Judge Rakoff, was whether the defendant sought legal advice from the Al itself. The answer was no (the platform expressly disclaimed providing such counsel). Taken together, the court emphasized a critical point: communications that are not privileged when made do not become privileged simply because they are later shared with an attorney.
WORK PRODUCT DOCTRINE: WHY IT FAILED
By way of background, the work product doctrine protects materials prepared by or at the direction of counsel in anticipation of litigation. Its purpose is to safeguard an attorney’s mental impressions and strategy. For purposes of his analysis, Judge Rakoff assumed that the documents generated by Claude were prepared in anticipation of litigation. Even so, they failed the doctrine’s core requirements: the defendant was not acting at counsel’s direction and was not functioning as counsel’s agent when communicating with the Al platform, and though the Al materials later influenced defense strategy, they did not reflect counsel’s strategy at the time they were created.
WHY THIS DECISION MATTERS
While the ruling in Heponer currently binds only the Southern District of New York, it is grounded in basic principles of privilege and confidentiality. As such, courts nationwide may well follow suit. And to the extent they do, the implications on both the attorney-client privilege and work product doctrine are significant, especially as Al tools continue to become embedded in business workflows, legal risk management, and executive communications
PRACTICAL TAKEAWAYS FOR COMPANIES
- Uploading, inputting, or pasting attorney communications, legal advice, or litigation strategy into a public-facing Al platform may waive privilege protections.
- Even private or “closed” Al networks raise unresolved privilege questions. Courts have not yet addressed whether such environments meaningfully alter the confidentiality or waiver analysis.
- For organizations deploying Al “assistants” to attend meetings, generate transcripts, or prepare summaries, if an Al tool is leveraged during discussions involving attorney-client communications, those conversations may be deemed disclosed to a third party. As otherwise stated, under traditional waiver principles, the presence of an Al system that stores, processes, or transmits communications outside the attorney-client relationship could undermine claims of confidentiality and privilege
BOTTOM LINE
Now is the time to review Al usage policies, employee training, vendor agreements, and meeting protocols to ensure privilege is not inadvertently waived. Remember, if it involves legal advice or litigation strategy, do not input information into a public Al platform. Likewise, companies should implement protocols disabling Al tools during privileged communications unless the privilege implications have been carefully vetted. If you have questions about Al use, privilege protection, or implementing safeguards within your organization, please contact a member of our team.
Lara Shortz
Office Managing Partner— Employment Advice, Counsel & Executive Disputes Chair
Los Angeles
+1 310-299-5500
Ishortz@mrilp.com
