Federal Court Rules That A Defendant's Communications With Generative AI Are Not Privileged

In a question of first impression, a federal judge in the Southern District of New York agreed with the United States government that certain written exchanges between a defendant and a generative artificial intelligence platform were not protected from government inspection by either the attorney-client privilege or the work product doctrine.

A recent federal court decision addressed the intersection between generative artificial intelligence ("AI") and privilege claims.

In United States of America v. Heppner, an individual facing fraud charges had: (i) input into the generative AI platform "Claude" information that he learned from counsel; (ii) used AI to create documents for the purpose of speaking with counsel to obtain legal advice; and (iii) subsequently shared the contents of the AI documents with counsel. (The defendant did this on his own to facilitate the provision of legal advice, but not at counsel's direction.)