Defining The Discoverability And Privilege Of AI-Generated Materials

In February, a judge in the Southern District of New York issued an opinion ruling in United States v. Heppner that a criminal defendant’s exchanges with a publicly available generative AI platform were not protected by the attorney-client privilege or the work product doctrine. The reasoning was simple: a publicly available AI platform is neither confidential nor a lawyer, and thus, there is no reasonable expectation of privacy. In addition, the criminal defendant’s counsel had not asked the client to prepare litigation documents, so the work product doctrine was not applicable. The Heppner decision has been followed by a series of federal rulings that cumulatively provide clarity on the issue of discoverability of AI-generated materials.