DEAR CLIENT – YOUR ChatGPT AND OTHER AI CAN DOOM YOUR CASE
Talking and corresponding with your attorney is shielded from discovery by the opposing counsel by the doctrine of attorney client privilege. It is meant to allow and indeed, intended to encourage honest and full disclosure of the legal facts and analysis between client and counsel. But what happens when the client decides to do a little research themselves through one of the various AI chatbots?
Courts are now confronting whether prompts and outputs shared with AI chatbots should be treated like private mental impressions or like disclosures to outsiders. This question has immediate and serious implications for discovery, as AI‑generated content could become a new category of electronically stored information (ESI) sought by opposing parties.
The first major case discussed is United States v. Heppner, decided in the Southern District of New York. In that case, a defendant used the AI platform Claude to help synthesize defense strategies. The court held that these AI communications were not protected by the attorney‑client privilege or the work‑product doctrine. The decision rested on two core conclusions. First, the court emphasized that privilege traditionally requires a communication between a client and a licensed attorney, grounded in a confidential, human relationship. An AI platform, the court reasoned, cannot satisfy that requirement. Second, the court found that the defendant lacked a reasonable expectation of confidentiality because the consumer version of the AI tool’s terms of service permitted review of user inputs and potential disclosure to third parties, including law enforcement. As a result, the court analogized the defendant’s AI use to “shouting secrets in a crowded public elevator.”
In contrast, in the case of Warner v. Gilbarco, Inc., a decision from the Eastern District of Michigan, the court reached the opposite conclusion. There, the court refused to compel the production of AI‑assisted materials, characterizing generative AI as a tool rather than a person. The court treated certain AI‑generated materials as protected work product, particularly where they were created as part of litigation preparation and under the direction of counsel. The decision also reflected proportionality concerns, suggesting that discovery requests aimed at AI prompts and outputs could amount to improper fishing expeditions.
A client taking the risk of using AI and then having to bear the burden (and cost) of trying to establish protection through old time legal principles of confidentiality, intent, and attorney involvement, why take the risk? What has changed is the practical risk profile. It will be expensive to litigate the AI disclosure issues and whether the AI interactions are protected or discoverable. Clients should consider working with their attorneys to use non-public AI platforms, keep the “lawyer‑in‑the‑loop” workflows, and thoughtful preservation strategies, to avoid turning interesting and potentially helpful technology into damaging evidence. Importantly, why become the AI confidentiality test case for your jurisdiction?
Importantly, Attorney-Client Privileged Information Cannot be Disclosed and Requires a Lawyer. So, don’t use AI without your counsel. Do not input facts, timelines, witness summaries, termination rationales, or attorney advice into consumer AI chatbots. Treat consumer AI like an elevator full of people where your input is broadcasted to everyone.
If you did it, then don’t delete it. Ask counsel first. Deleting it may be treated as spoilation of evidence and used against you negatively, regardless of the AI chat outcome.
Please feel free to contact Dawn at dawn@eppscoulson.com if you have any questions.
EPPS & COULSON, LLP
Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney. It is likely considered advertising. Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business. Epps & Coulson, LLP attorneys and affiliated counsel admitted to practice in California, Texas, Colorado, Oregon, New York, Connecticut, District of Columbia, Massachusetts, Michigan, New Jersey, Hawaii, European Union, England and Whales, France (Paris Bar), Sweden, and the US Patent & Trademark Office.