Divergent: Two Federal Courts Chart Seemingly Opposite Paths On Work Product Protection For AI-Generated Materials

Within the span of a single week in February 2026, two federal courts issued groundbreaking rulings on a question of increasing urgency for litigants and their counsel: are materials generated through interactions with publicly available artificial intelligence platforms protected from discovery under the attorney-client privilege or the work product doctrine? Comparing the two decisions, the answer appears to depend on who created the materials, why, and how those materials relate to the litigation strategy of the party or counsel. In United States v. Heppner, No. 25 Cr. 503 (JSR) (S.D.N.Y. Feb. 17, 2026), Judge Jed S. Rakoff held that a criminal defendant's exchanges with the AI platform Claude prior to counsel's involvement were not protected by privilege or the work product doctrine. Just days earlier, in Warner v. Gilbarco, Inc., No. 2:24-cv-12333 (E.D. Mich. Feb. 10, 2026), Magistrate Judge Anthony P. Patti reached the opposite conclusion in a case of a pro se plaintiff's use