AI & Law News for February 10, 2026

United States v Heppner AI Privilege

United States v. Heppner, No. 25-cr-00503-JSR (S.D.N.Y.), is a February 10, 2026, ruling by the United States District Court for the Southern District of New York holding that documents generated by a defendant using the public AI tool Claude are not protected by attorney-client privilege or the work product doctrine.

Background

Defendant Bradley Heppner used the public AI tool Claude to generate documents, which the government sought access to during discovery. Heppner argued that the documents were protected by attorney-client privilege because he later shared the outputs with his lawyers, and alternatively that they were protected as work product.

Holdings

Attorney-Client Privilege Inapplicable

The court held that no privilege applied because:

• Claude is not a licensed attorney, lacking the "trusting human relationship" required for privilege
• Communications with Claude were not made for the purpose of obtaining legal advice from counsel
• Later sharing AI outputs with lawyers does not retroactively create privilege over preexisting documents
• There was no reasonable expectation of confidentiality given Claude's privacy policy, which disclaims confidentiality and reserves disclosure rights

Work Product Doctrine Inapplicable

Work product protection also failed because Heppner created the documents on his own initiative, without counsel's direction, and they did not reflect the mental impressions or strategy of an attorney.

Potential Waiver of Underlying Privilege

The court noted that inputting attorney communications into a public AI tool could potentially waive privilege over those underlying communications.

Distinction from Warner v. Gilbarco

The same day, Warner v. Gilbarco, Inc. in the Eastern District of Michigan reached the opposite conclusion on work product, holding that a pro se plaintiff's AI-generated materials were protected because AI is a "tool, not a person." The split highlights emerging circuit tensions over whether AI platforms should be treated as third parties (waiving privilege/work product) or neutral tools (preserving protection).

Issue	Heppner (S.D.N.Y.)	Warner v. Gilbarco (E.D. Mich.)
AI-Generated Materials	Not protected	Protected as work product
Waiver Analysis	AI as third party per terms of service	AI as "tool"; no adversary disclosure
Key Factor	No counsel direction; AI terms allow third-party exposure	Pro se status; litigation anticipation; tool vs. person

Implications

The ruling establishes that communications with public AI platforms are not privileged under existing doctrine. Organizations must review AI use policies; counsel-directed AI use might yield different results, but consumer AI tools risk privilege waiver.

References

See individual article: United States v Heppner AI Privilege

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Warner v Gilbarco AI Work Product

Warner v. Gilbarco, Inc., No. 2:2024cv12333 (E.D. Mich.), is a February 10, 2026, ruling by Magistrate Judge Anthony P. Patti holding that a pro se plaintiff's materials generated using AI tools like ChatGPT are protected under the work product doctrine.

Background

Pro se plaintiff Sohyon Warner brought employment discrimination claims against Gilbarco, Inc. and Vontier Corporation. During discovery, defendants sought production of all documents and information about Warner's use of third-party AI tools (including ChatGPT) for litigation preparation, including deposition details on her prompts and outputs. Warner objected, asserting work product protection under Fed. R. Civ. P. 26(b)(3)(A).

Holdings

Work Product Protection Applies

Magistrate Judge Patti held that materials qualified as work product because a pro se litigant acts as their own "party or representative," preparing them "in anticipation of litigation or for trial" under Rule 26(b)(3)(A). No attorney involvement is required for work product protection.

No Waiver from AI Use

The court held that waiver requires disclosure "to an adversary or in a way likely to get in an adversary's hands." Generative AI like ChatGPT is a "tool, not [a] person[], even if they may have administrators somewhere in the background." Provider access does not trigger waiver, unlike attorney-client privilege (which requires no adversary disclosure).

Additional Grounds

The court also found that the discovery request was irrelevant, disproportionate under Rule 26(b)(1), and sought protected "mental impressions" and thought processes. No case law supported the defendants' theory; their argument relied on a Law360 article.

Distinction from Privilege

The court carefully distinguished work product (party-focused, narrower waiver) from attorney-client privilege (third-party disclosure waives). The ruling applies specifically to work product doctrine analysis, not to privilege.

Distinction from United States v. Heppner

The same day, United States v. Heppner (S.D.N.Y.) reached the opposite conclusion, holding that AI-generated documents are not protected. The split creates emerging circuit tension over whether AI platforms should be treated as third parties or neutral tools.

Issue	Warner v. Gilbarco (E.D. Mich.)	Heppner (S.D.N.Y.)
AI-Generated Materials	Protected as work product	Not protected
AI Characterization	"Tool, not a person"	Third party per terms of service
Key Factor	Pro se status; litigation anticipation	No counsel direction; public AI terms

Implications

This ruling adopts a "literal, party-centric" view of Rule 26(b)(3)(A), prioritizing litigation anticipation over creation method or tool privacy risks. Litigants should document AI use as "anticipation of litigation" to invoke protection. No appeal or further docket updates have been noted as of April 13, 2026.

References

See individual article: Warner v Gilbarco AI Work Product

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