News United States v Heppner AI Privilege 2026
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.[1][2][3]
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.[1][2]
Holdings
Attorney-Client Privilege Inapplicable
The court held that no privilege applied because:[3][4]
- 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.[1][4]
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.[3]
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."[4] 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.[3][5]
References
- ↑ 1.0 1.1 1.2 Chapman, "Federal Court Rules That AI-Generated Documents Are Not Protected by Privilege"
- ↑ 2.0 2.1 JD Supra, "SDNY Rules That AI-Generated Documents Are Not Privileged"
- ↑ 3.0 3.1 3.2 3.3 Frier Levitt, "AI & Attorney-Client Privilege: United States v. Heppner"
- ↑ 4.0 4.1 4.2 Perkins Coie, "Heppner and Gilbarco: Courts Apply Privilege and Work Product Protection to Generative AI"
- ↑ Gibson Dunn, "AI Privilege Waivers: SDNY Rules Against Privilege Protection for Consumer AI Outputs"