Tool or Third Party? Courts Differ on AI’s Role in Privilege and Work-Product Protections

James Koukios spoke to Cybersecurity Law Report about contrasting rulings in United States v. Heppner and Warner v. Gilbarco, Inc. on whether interactions with generative AI platforms are protected by attorney-client privilege and work-product doctrine. In Heppner, the presiding judge ruled that a criminal defendant’s exchanges with an AI chat bot were not protected, while the presiding judge in Warner held that documents and information regarding a pro se plaintiff’s use of an AI chat bot were shielded from discovery.

Despite the divergent outcomes, James stated that the cases are “largely reconcilable because they arose in different postures and on different ‘disclosure’ facts.” He noted the Warner court “rejected a civil discovery effort to probe a party’s AI-assisted drafting process and treated the requested AI materials as not discoverable and as protected work product that was not disclosed to an adversary,” while Heppner addressed “written exchanges between an individual and a publicly available AI platform whose terms defeated confidentiality and that were not counsel-directed, leading the court to deny privilege and work-product protection.”

James further stated that the Heppner ruling “heightens the need to warn clients not to use publicly available AI tools for case strategy or ‘legal research’ absent counsel’s direction, and to create a record if a client’s AI use is at counsel’s direction. Clients should be told that using publicly available AI chatbots to draft narratives, test defenses or explore legal arguments can create discoverable records and may waive privilege if it involves attorney communications or litigation strategy.”

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