A recent decision from the Southern District of New York provides one of the first judicial answers to a fast-emerging question: are litigants’ communications with a publicly available generative AI platform protected from disclosure? In United States v. Heppner, the court held that written exchanges between a criminal defendant and a commercial AI chatbot were not protected by the attorney-client privilege or the work product doctrine. The ruling underscores that traditional privilege and work product principles apply squarely to new technologies, and that litigants using publicly available AI tools in investigations or litigation run serious disclosure risks.
Breakdown of the Case
The defendant, a corporate executive, was indicted on charges including securities fraud, wire fraud, and conspiracy. After his arrest, the FBI executed a search warrant and seized, among other things, approximately thirty-one documents memorializing exchanges between the defendant and a generative AI
