The Perils Of Privilege Waivers Through AI

In an issue of first impression, a federal court held that information a defendant input to a consumer generative AI system on his own initiative is not protected by the attorney-client privilege or the work product doctrine. That holding extended to documents the defendant generated using AI and later shared with counsel.

In United States v. Heppner, No. 25 CR. 503 (JSR), 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026), the court addressed whether a defendant's conversations with a consumer generative AI platform are privileged. Judge Jed S. Rakoff held they are not—where the conversations were not made at counsel's request and were conducted on a publicly available, nonenterprise platform. This is the first federal court decision to address whether a client's "AI chats" on a consumer AI platform are privileged. The answer, on these facts, is no. The decision also flagged a broader risk: Sharing otherwise privileged information with a consumer AI tool may waive the