Are Your Conversations With AI Shielded From Discovery? Courts Are Split

Whether a client’s prompts to a generative AI tool and the documents it produces are protected from disclosure depends on the case type, who claims protection, and whether counsel was involved. In United States v. Heppner, a New York federal judge ruled that a criminal defendant’s communications with an AI platform were protected by neither the attorney-client privilege nor the work product doctrine. Since then, federal courts in civil cases have reached a different result, holding that a party can assert work product protection over AI-assisted materials. The safest course for businesses and individuals remains the same: treat AI platforms as third parties and involve counsel before using them in connection with a legal matter.