Overview
- Ruling from the bench on Feb. 10 in United States v. Heppner held that about 31 documents a defendant generated with a consumer chatbot are not protected by attorney-client privilege or the work product doctrine.
- The court found the AI provider’s terms permitted training and disclosure, defeating the confidentiality required for privilege, and later sharing the materials with counsel did not retroactively create protection.
- Work product did not apply because the defendant created the documents on his own initiative rather than at the direction of his attorneys.
- The ruling addresses a narrow fact pattern involving a consumer AI platform and leaves open how enterprise contracts guaranteeing confidentiality or attorney-directed use might be treated.
- No written opinion has been issued yet, and legal commentators urge organizations to review AI policies, distinguish consumer from enterprise tools, and route AI-assisted legal work through counsel as Heppner heads toward an April 6 trial.