Southern District of New York Federal Court Rules AI Communications Not Protected by Attorney-Client Privilege

On February 17, 2026, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York issued a significant ruling addressing whether communications between a criminal defendant and a generative artificial intelligence platform are protected by attorney-client privilege or the work product doctrine. The Court held that such communications are not protected under either doctrine.   

Factual Background 

Bradley Heppner, a former executive of a publicly traded company, was indicted on a number of criminal charges arising from alleged misconduct involving more than $150 million in investor losses. When FBI agents executed a search warrant at Heppner’s home, they seized approximately thirty-one documents memorializing communications between Heppner and a generative artificial intelligence platform.  

Heppner’s counsel represented that these communications occurred after Heppner had received a grand jury subpoena and he was clearly the target of an investigation. According to counsel, Heppner used the generative AI platform to prepare reports outlining defense strategy and potential arguments regarding facts and law. Heppner asserted privilege over these documents, arguing that he had input information learned from counsel, created the documents for the purpose of speaking with counsel, and subsequently shared the contents with counsel. Critically, however, counsel conceded that Heppner was not directed by counsel to use the AI platform. 

Attorney-Client Privilege 

The Court applied the established three-part test for attorney-client privilege, which protects communications (1) between a client and attorney (2) that are intended to be, and were, kept confidential (3) for the purpose of obtaining or providing legal advice. The Court found the AI documents failed to meet the standard. 

First, the communications were not between Heppner and his counsel. Because the AI platform is not an attorney, the Court held that alone disposed of Heppner’s privilege claim. The Court rejected arguments that AI inputs are akin to using cloud-based word processing applications, noting that recognized privileges require a trusting human relationship with a licensed professional—a relationship that cannot exist between an AI user and an AI platform.   

Second, the communications were not confidential. The Court emphasized that the AI platform’s privacy policy clearly provides that the company collects data on user inputs and AI outputs, uses such data to train the AI tool, and reserves the right to disclose data to third parties including governmental regulatory authorities. Accordingly, Heppner could have had no reasonable expectation of confidentiality in his communications with the AI platform.  

Third, Heppner did not communicate with the AI platform for the purpose of obtaining legal advice. Although Heppner intended to share the communications with counsel, he was not directed by counsel to use the AI platform.  

The Court further held that non-privileged communications are not transformed into privileged ones merely by being shared with counsel. Even if certain information Heppner input into the AI platform was privileged, he waived that privilege by sharing it with the AI platform. 

Work Product Doctrine 

The Court similarly rejected Heppner’s work product claim. The work product doctrine provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial. The Court noted the doctrine’s purpose is not generally promoted by shielding materials that were prepared neither by the attorney nor his agents. 

The AI documents did not merit protection because, even assuming they were prepared in anticipation of litigation, they were not prepared by or at the behest of counsel, nor did they reflect defense counsel’s strategy. Heppner’s counsel confirmed the documents were prepared by the defendant on his own volition, meaning they did not reflect counsel’s strategy at the time Heppner created them. 

Key Takeaways 

This ruling establishes important principles regarding the use of generative AI in the context of attorney-client privilege and attorney work-product protections: 

1. Communications with publicly available AI platforms are not communications with an attorney and cannot satisfy the requirements to be protected by the attorney-client privilege.  

1. Users of publicly available AI platforms have no reasonable expectation of confidentiality given that platform operators typically collect user inputs, use data for training, and reserve the right to disclose information to various third parties.  

1. AI platforms cannot provide legal advice, and users cannot claim they were seeking legal advice from an AI platform, particularly when the AI itself disclaims providing such advice.  

1. Work product protection does not apply to materials a client prepares using AI on their own initiative without direction from counsel, as such materials do not reflect counsel’s mental processes or strategy.  

1. Sharing otherwise non-privileged communications with counsel does not convert them into privileged materials.  

Practical Implications for Clients 

Clients should be aware that any communications they have with generative AI platforms may be discoverable and will likely not be protected by the attorney-client privilege.  

Clients should not use AI platforms to analyze legal issues, develop defense strategies, or process information related to pending or anticipated legal matters without express direction from counsel. Even when counsel does direct such use, the Court’s reasoning suggests that a strong argument against privilege would still exist given the lack of confidentiality inherent in using third-party AI platforms.  

Clients should also be careful in using other AI tools in the context of discussions with counsel including AI note takers, for example. 

As the Court concluded, AI’s novelty does not mean that its use is not subject to longstanding legal principles, such as those governing the attorney-client privilege and the work product doctrine.  

The use of AI tools in the context of legal matters should be discussed with counsel and AI tools should be properly vetted before they are used by clients in this context. 

Should you have questions about your use of AI in the context of legal matters, please reach out to discuss.  

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.