SDNY Rules Communications With A Public Generative AI Platform Are Not Protected By Attorney-Client Privilege Or Work Product Doctrine

Key Points

• In a question of first impression, the U.S. District Court for the Southern District of New York (SDNY)¹  ruled that a criminal defendant's written exchanges with a publicly available generative AI platform are not protected by the attorney-client privilege or the work product doctrine.
• The court found that no attorney-client relationship can exist with a public AI platform and that users lack a reasonable expectation of confidentiality due to the platform's privacy policy, which discloses the use of "inputs" and "outputs" for AI training and reserves the right to share such data with third parties.
• The court also determined that the work product doctrine does not apply to materials prepared by a client on their own volition without the direction or involvement of counsel.