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| '''February 10, 2026''' — Daily digest of AI law developments.
| | #REDIRECT [[News-February-10-2026]] |
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| This article consolidates 2 news stories from February 10, 2026.
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| == Contents ==
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| 1. United States v Heppner AI Privilege
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| 2. Warner v Gilbarco AI Work Product
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| ----
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| == United States v Heppner AI Privilege ==
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| '''''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 (AI)|Claude]] are not protected by [[attorney-client privilege]] or the [[work product doctrine]].<ref name="chapman">[https://www.chapman.com/publication-federal-court-rules-that-ai-generated-documents-are-not-protected-by-privilege Chapman, "Federal Court Rules That AI-Generated Documents Are Not Protected by Privilege"]</ref><ref name="jdsupra">[https://www.jdsupra.com/legalnews/sdny-rules-that-ai-generated-documents-8999585/ JD Supra, "SDNY Rules That AI-Generated Documents Are Not Privileged"]</ref><ref name="frierlevitt">[https://www.frierlevitt.com/articles/ai-attorney-client-privilege-united-states-v-heppner/ Frier Levitt, "AI & Attorney-Client Privilege: United States v. Heppner"]</ref>
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| == Background ==
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| 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.<ref name="chapman"/><ref name="jdsupra"/>
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| == Holdings ==
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| === Attorney-Client Privilege Inapplicable ===
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| The court held that no privilege applied because:<ref name="frierlevitt"/><ref name="perkinscoie">[https://perkinscoie.com/insights/update/heppner-and-gilbarco-courts-apply-privilege-and-work-product-protection-generative Perkins Coie, "Heppner and Gilbarco: Courts Apply Privilege and Work Product Protection to Generative AI"]</ref>
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| * [[Claude (AI)|Claude]] is not a licensed attorney, lacking the "trusting human relationship" required for privilege
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| * Communications with Claude were not made for the purpose of obtaining legal advice from counsel
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| * Later sharing AI outputs with lawyers does not retroactively create privilege over preexisting documents
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| * There was no reasonable expectation of confidentiality given Claude's privacy policy, which disclaims confidentiality and reserves disclosure rights
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| === Work Product Doctrine Inapplicable ===
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| 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.<ref name="chapman"/><ref name="perkinscoie"/>
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| === Potential Waiver of Underlying Privilege ===
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| The court noted that inputting attorney communications into a public AI tool could potentially waive privilege over those underlying communications.<ref name="frierlevitt"/>
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| == Distinction from Warner v. Gilbarco ==
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| The same day, [[News Warner-v-Gilbarco-AI-Work-Product-2026|''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."<ref name="perkinscoie"/> 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).
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| {| class="wikitable"
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| ! Issue !! Heppner (S.D.N.Y.) !! Warner v. Gilbarco (E.D. Mich.)
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| | AI-Generated Materials || Not protected || Protected as work product
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| | Waiver Analysis || AI as third party per terms of service || AI as "tool"; no adversary disclosure
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| | Key Factor || No counsel direction; AI terms allow third-party exposure || Pro se status; litigation anticipation; tool vs. person
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| |}
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| == Implications ==
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| 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.<ref name="frierlevitt"/><ref name="gibsondunn">[https://www.gibsondunn.com/ai-privilege-waivers-sdny-rules-against-privilege-protection-for-consumer-ai-outputs/ Gibson Dunn, "AI Privilege Waivers: SDNY Rules Against Privilege Protection for Consumer AI Outputs"]</ref>
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| == References ==
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| <references />
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| ''See individual article: [[News United-States-v-Heppner-AI-Privilege-2026|United States v Heppner AI Privilege]]''
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| ----
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| == Warner v Gilbarco AI Work Product ==
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| '''''Warner v. Gilbarco, Inc.''''', No. 2:2024cv12333 ([[United States District Court for the Eastern District of Michigan|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]].<ref name="proskauer">[https://www.proskauer.com/alert/michigan-federal-court-protects-ai-assisted-litigation-work-product Proskauer, "Michigan Federal Court Protects AI-Assisted Litigation Work Product"]</ref><ref name="paulweiss">[https://www.paulweiss.com/insights/client-memos/federal-courts-reach-different-outcomes-on-whether-ai-generated-materials-warrant-work-product-protection Paul Weiss, "Federal Courts Reach Different Outcomes on AI-Generated Materials and Work Product Protection"]</ref><ref name="perkinscoie">[https://perkinscoie.com/insights/update/heppner-and-gilbarco-courts-apply-privilege-and-work-product-protection-generative Perkins Coie, "Heppner and Gilbarco: Courts Apply Privilege and Work Product Protection to Generative AI"]</ref>
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| == Background ==
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| 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).<ref name="proskauer"/><ref name="paulweiss"/>
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| == Holdings ==
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| === Work Product Protection Applies ===
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| 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.<ref name="proskauer"/><ref name="perkinscoie"/>
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| === No Waiver from AI Use ===
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| 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).<ref name="proskauer"/><ref name="paulweiss"/><ref name="perkinscoie"/>
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| === Additional Grounds ===
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| 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.<ref name="perkinscoie"/>
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| === Distinction from Privilege ===
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| 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.<ref name="paulweiss"/>
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| == Distinction from United States v. Heppner ==
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| The same day, [[News United-States-v-Heppner-AI-Privilege-2026|''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 split|circuit tension]] over whether AI platforms should be treated as third parties or neutral tools.<ref name="perkinscoie"/>
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| {| class="wikitable"
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| ! Issue !! Warner v. Gilbarco (E.D. Mich.) !! Heppner (S.D.N.Y.)
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| | AI-Generated Materials || Protected as work product || Not protected
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| | AI Characterization || "Tool, not a person" || Third party per terms of service
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| | Key Factor || Pro se status; litigation anticipation || No counsel direction; public AI terms
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| |}
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| == Implications ==
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| 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.<ref name="proskauer"/><ref name="paulweiss"/>
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| == References ==
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| <references />
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| ''See individual article: [[News Warner-v-Gilbarco-AI-Work-Product-2026|Warner v Gilbarco AI Work Product]]''
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| ----
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| == Categories ==
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| [[Category:Data Privacy]]
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| [[Category:Employment]]
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| [[Category:Federal Regulation]]
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| [[Category:Supreme Court]]
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| [[Category:Daily News]]
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