Dear Counsel, Meet Exhibit A: Your Client's ChatGPT History

Depending on which court you ask, your latest prompt to an artificial intelligence ("AI") chatbot is either a protected private thought or a voluntary disclosure to someone other than your lawyer. In a legal landscape struggling to keep pace with technology, two 'first-of-their-kind' rulings—United States v. Heppner and Warner v. Gilbarco—have created a high-stakes divide over whether AI is a mere tool or a third party that renders communications discoverable by the other side.

When Bradley Heppner turned to the AI 'Claude' to help synthesize his defense strategy, he thought he was using a modern drafting tool; instead, a New York judge ruled he was effectively shouting his secrets in a "crowded public elevator." Meanwhile, a Michigan court recently reached the opposite conclusion, shielding AI interactions as protected work product and declaring that AI is a "tool, not a person."