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ARTICLE · 06 APRIL 2026

Exchanges With Generative AI Not Protected By Privilege (United States Of America v. Heppner)

Gardiner Roberts LLP
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The growing use of generative Artificial Intelligence is undeniable. According to Justice Rakoff of the United States District Court of the Southern District of New York...

CanadaLitigation, Mediation & Arbitration
Stephen Thiele
Stephen Thiele
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The growing use of generative Artificial Intelligence is undeniable. According to Justice Rakoff of the United States District Court of the Southern District of New York, "[o]nly three years after its release, one prominent AI platform is being used by more than 800 million people worldwide every week."

As we have already seen in several court cases, this growing use is having significant negative impacts on the justice system, as both self-represented litigants and lawyers have been caught citing AI-generated hallucinated cases and propositions to the courts. Notwithstanding that these decisions should be raising loud alarms within the legal community and for the public, lawyers and individuals continue to use publicly available generative AI platforms to chat about legal issues. However, these AI platforms are not lawyers and therefore there is a danger that any exchanges with them are not protected by solicitor-client privilege or litigation privilege/work product privilege.

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