In what is apparently an issue of first impression, a judge in the United States District Court for the Southern District of New York has just ruled that queries and analysis of legal theories run through an AI program by a defendant and shared with that defendant’s attorneys were not protected by any privilege doctrine and had to be disclosed in the case. Judge Jed Rakoff handed down a decision on February 17, 2026 in United States v. Heppner that should inform caution in clients consulting with AI programs for the purpose of expected or pending legal matters.
In Heppner, the defendant had been indicted in October 2025 on multiple securities fraud-related charges in connection with his role as an executive of a life insurance settlements company. FBI agents had executed a search warrant at Heppner's home upon his arrest and seized documents memorializing communications Heppner had with the generative AI platform "Claude." These communications occurred in 2025 after Heppner had received a grand jury subpoena and knew he was the target of a criminal investigation. Heppner had used Claude to prepare reports outlining potential defense strategies and anticipated government charges.
Heppner asserted privilege over the AI documents, claiming that he had input information learned from counsel, he created the documents for the purpose of speaking with counsel to obtain legal advice, and he subsequently shared the AI outputs with counsel. In response, the Government moved for a ruling that the documents were subject to disclosure.
In finding that the documents were not covered by any privilege doctrine and were in fact subject to disclosure, the court noted that the defendant had failed to meet the three elements required for privilege to attach. First, Heppner’s interactions with Claude were not between an attorney and a client. Second, the materials would not be kept confidential in light of Claude’s user policy providing that user input and Claude’s output would be used to train the model and could be disclosed to third parties. Third, while Heppner claimed that he communicated with Claude for the express purpose of talking to counsel, he did not do so at the direction of counsel, and thus the platform could not be deemed to have functioned in a manner akin to a highly trained professional acting as an agent of the attorney. The court also found it notable that Claude itself disclaims the ability to provide legal advice. The fact that Claude’s analysis was not prepared at the behest of counsel was also deemed to be dispositive in denying any work product protection over the material.
While this ruling potentially leaves some daylight to claim privilege over client-initiated, AI-generated materials in a truly closed/confidential AI system where the attorney has directed the program use, absent confirmation otherwise, clients should operate by default on the assumption that a system is not closed and material may be subject to disclosure in any legal action. Notably, AI platforms marketed specifically for law firm use, as opposed to generally commercially available models, tout closed systems where information input by the attorneys is not used to train the model, and such information is subject to robust confidentiality restrictions.
This ruling may also have implications for clients using AI notetaker programs in virtual meetings with their attorneys. Clients often attend such meetings with AI notetakers automatically set to appear. When it cannot be assured that information gathered by the AI notetaker will be stored confidentially and/or not used to train the AI model, a court may find that there was no reasonable expectation of confidentiality, destroying any privilege with respect to those notes. Attorneys and clients should therefore exercise significant caution in allowing AI notetakers to “attend” their virtual meetings.
To learn more about the issues raised in this client alert, please contact Cassandra Porsch at cporsch@potomaclaw.com.
Note: This alert is for general use and should not be construed to provide legal advice as to particular factual situations.
