On February 17, 2026, the judge in the case of United States v. Heppner (S.D. N.Y. Feb 17, 2026) answered a question of first impression nationwide: when a user communicates with a publicly available AI platform in connection with pending litigation are the AI user’s communications protected by attorney-client privilege or the work product doctrine? After hearing a motion presented by the government, the judge ruled that the materials created as a result of defendant’s communications with the publicly available AI platform, “Claude,” were not protected by either attorney-client privilege or the work product doctrine.
In this criminal case, a search warrant was executed on the defendant’s home, and a number of documents and electronic devices were seized. In the materials seized were approximately thirty-one (31) documents that memorialized communications between the defendant and “Claude,” an AI assistant. Apparently, after the defendant became aware of the grand jury subpoena, which indicated to him that he was the subject of an investigation, he used the publicly available AI platform to create reports analyzing potential defenses, legal strategy, and arguments based on the facts and the law that he assumed that the government may be charging. These written materials were seized pursuant to the search warrant. The defendant claimed that these AI generated documents were protected because they were prepared in anticipation of litigation, incorporated information that he obtained from counsel, were prepared for the purpose of speaking with counsel and obtaining legal advice and were later shared with his counsel. The court disagreed.
The court based its ruling that these materials were not covered by either attorney-client privilege or the work product doctrine on the following:
Attorney-Client Privilege:
- These communications were not between the defendant and his attorney. Communications with non-lawyers, in this case the AI assistant, are not privileged, even if the information is later shared with an attorney. The sole fact that “Claude” was not the defendant’s lawyer defeats the argument that the communications should be protected by attorney-client privilege.
- The court did not accept the defendant’s argument that AI is not a third-party and, instead, is a software tool, much like a cloud-based word processing application, so inputting the information to AI software tool should not be treated as disclosure of the information to a third party. The court disagreed and further emphasized that even if AI was a software tool privilege flows from a protected relationship- a human relationship with a professional who owes fiduciary duties to the other and is subject to discipline. There is no such protected relationship with AI.
- In its analysis, the court emphasized the AI platform’s privacy policy that was disclosed to users to which the users consented, which stated that the user’s data (inputs and outputs) could be retained and shared with third parties including, but not limited to, in connection with litigation. Therefore, the user was put on notice that the information shared with the AI platform could be shared with third parties, so there was no reasonable expectation of confidentiality when submitting information to the AI platform.
- The defendant’s attorney conceded that the defendant did not use the AI platform at the direction of counsel. If the attorney had directed the defendant to use the AI platform, perhaps one could argue that AI functioned in the same manner as a trained professional acting as the lawyer’s agent within the protection of the attorney-client privilege.
Work Product Doctrine:
- The court found that the work product doctrine did not apply because, even though the materials were created in anticipation of litigation, the materials were not prepared by or at the direction of defendant’s counsel.
- The court made an interesting point: materials that affect an attorney’s strategy is not the same as materials that reflect the attorney’s strategy at the time the document was created. The latter would be protected by the work product doctrine.
- Even if the defendant input information that he received from counsel into the AI platform, then any privilege associated with that information was waived by sharing the information with the third-party.
It is important to note that it seems that under different circumstances (e.g. if the use of the AI platform was directed by counsel) a different analysis may apply regarding the protection of the materials.
While new technology continues to change the world around us, it seems that it has not changed our well-established legal principles of the application of attorney-client privilege and the work product doctrine. One may find that reassuring in our ever-changing legal landscape.
- Jennifer R. Silva
