Given the rapidly increasing use of AI, courts are beginning to address the extent to which the use of AI tools to assist in solving legal problems is protected from discovery, such as discovery. Early court decisions indicate that there is a substantial risk that communications between clients and AI platforms may not be protected by the attorney-client privilege or the work product doctrine.
Attorney-client privilege typically protects communications between an attorney and a client from disclosure. Similarly, according to Federal Rule of Civil Procedure 26(b)(3)(A), the work product doctrine protects “documents and tangible things produced in preparation for litigation or trial.”
Two courts recently issued opinions that provide important insight into the risks of inadvertently waiving the attorney-client privilege and work product doctrine when clients utilize AI tools. in America vs. HeppnerNo. 1:25-cr-00503-JSR, ECF. The court ruled on Tuesday (SDNY, February 17, 2026) that personal inputs and resulting outputs generated by non-corporate AI tools (meaning public tools generally available at the consumer level) are not protected by the attorney-client privilege or work product doctrine, even if the individual using the AI tool is involved in a lawsuit and seeking legal advice.
of heppner The court held that the attorney-client privilege does not apply to “communications” between individuals and AI platforms, but only to communications between clients and their attorneys. The court further stated that the AI tools used by the individual heppner It included a disclaimer that user submissions were not confidential. Therefore, the court held that the use of this tool constituted third-party disclosure and was not protected by attorney-client privilege.
of heppner The court also held that AI-generated material is not protected as a copyrighted work because it (1) was not created by or at the direction of an attorney, and (2) was not generated to reflect a legal strategy, especially since no attorney was involved in the use of the AI. It is unclear whether the court would have ruled differently if the lawyer had instructed his client to use AI tools.
The court also held that the use of AI tools independent of lawyers is not a work product because the protection applies only to the work of “lawyers.” The court declined to extend protection to the client’s own work.
There are other examples where courts have expanded the work product doctrine to include things that clients produce themselves. For example, within the same jurisdiction, heppnercourt of Felder vs. Warner Bros. DiscoveryNo. 23-Cv-8487, 2025 WL 3628224 (SDNY, Dec. 15, 2025), specifically provides that client-generated non-AI materials are protected as work products.
court of heppner It did not address whether lawyers’ use of AI tools to inform case strategy would enable application of the attorney-client privilege and/or work product doctrine. But another recent lawsuit addressed just that issue.
in Warner vs. GilbarcoNo. 2:24-cv-12333, 2026 BL 43591 (ED Mich. February 10, 2026), the court held that materials generated by AI tools in litigation preparation are not discoverable. Unlike heppnerif a court determines that disclosure to a consumer AI tool constitutes disclosure to a “third party” and thereby destroys the attorney-client privilege, the court may Warner argued that because generative AI is a tool, not a human, disclosing it would not compromise confidentiality.
of Warner The court found that there is no meaningful distinction between using AI tools to create case materials and other actions that have historically been protected as work product, such as attorneys taking notes during interviews with fact witnesses. The court did not even require the issuance of a privilege log specific to AI-generated material, ruling that parties could simply challenge based on the attorney-client privilege and/or work product doctrine.
because, heppner The court specifically noted that the generative AI tools are used by non-lawyers and are not confidential information. Clients and their lawyers need to be aware of which AI tools are being used and by whom. under heppnerthe use of consumer-level AI tools such as ChatGPT can subvert attorney-client privilege, even if used by a lawyer. moreover, heppner It has been suggested that even if users utilize AI tools to assist in developing litigation strategies, there may be no work product protections for input or output from AI tools used by non-lawyers. meanwhile Warner While some courts have suggested that AI-generated information may be more protective, a prudent approach to protecting AI inputs and outputs from disclosure requires the use of tools specifically designed to maintain confidentiality. Even then, the use of AI tools should be done by or at least under the guidance of a lawyer.
