In a first-of-its-kind ruling, a federal judge in New York City held that a party’s communications with a commercial Generative AI (GAI) platform, “Claude,” were not subject to the attorney-client privilege or the work product doctrine. This opened up the records of those communications to discovery by the opposing party. In light of this decision, individuals and entities either involved in litigation, or facing the prospect of litigation, should consult an attorney before utilizing GAI tools to help with potentially legal tasks.
In United States v. Heppner, No. 25 Cr. 503 (JSR), 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026), the defendant was charged with securities and wire fraud. Prior to being charged, but after becoming aware he was the subject of a criminal investigation, the defendant had a large number of exchanges with Claude, which is owned by the private company Anthropic. His attorney did not direct that he do so. These exchanges included the development of documents outlining case strategy and containing arguments about the facts and law of a potential case against him. The defendant sought to protect these exchanges from disclosure, arguing that they were subject to the attorney-client privilege and the work product doctrine primarily for three reasons: (1) the defendant had inputted into Claude information that he had learned from counsel; (2) he prompted these AI exchanges for the purpose of speaking with counsel to obtain legal advice; and (3) he later shared the contents of these AI exchanges with counsel.
The court rejected these arguments. Instead, it found that the attorney-client privilege did not apply because Claude is not an attorney, and the defendant’s communications with Claude were therefore not communications with counsel. The court also noted that the defendant GAI user had no reasonable expectation of confidentiality in their communications with Claude. Moreover, the court declined to apply the work product doctrine, which shields the mental processes of attorneys from disclosure in litigation, because the exchanges were not prepared by or at the behest of counsel.
We remain very early in the process of developing the rules and case law that will one day bring greater certainty to the use of GAI in connection with litigation. No court in Maine, New Hampshire, or the First Circuit has yet ruled on the discoverability of a party’s communications with GAI platforms. When they do, the Heppner decision will likely enter into their consideration. Given the risks of disclosure to an adverse party, businesses and individuals in Maine who face the prospect of litigation should consult with counsel before using GAI tools to assist with legally adjacent tasks.
Bernstein Shur’s Litigation & Dispute Resolution Group represents clients in complex commercial disputes across industries and forums, including state and federal courts, administrative proceedings, arbitrations, and appeals. The team provides advocacy and guidance to help clients navigate high-stakes litigation and resolve disputes efficiently. Josh Burger is a commercial litigator who brings experience from an international law firm in New York City and works closely with clients to develop strategies aligned with their legal and business goals. Emery Younger, an associate in the Litigation & Dispute Resolution Group, practices commercial litigation and brings strategic insight and composure shaped by his experience in the fast-paced world of politics. They can be reached at [email protected] and [email protected].