Federal Court Holds AI Communications Are Not Privileged or Work Product: What Florida Clients Should Know

A Matter of First Impression on AI and Privilege

In United States v. Heppner, a federal court in the Southern District of New York addressed what it described as a question of first impression: whether a person’s communications with a publicly available generative artificial intelligence platform, used in connection with a pending criminal investigation, are protected from disclosure by the attorney-client privilege or the work product doctrine. The Court held they were not. A Hialeah, FL real estate lawyer can help clients protect sensitive communications, understand how emerging technologies may affect legal confidentiality, and provide guidance on preserving privilege when seeking legal advice.

The Facts Before the Court

The defendant had used Claude, a generative AI platform, to create documents that reportedly analyzed potential defenses, legal arguments, and issues related to the government’s investigation. The government later seized those AI-generated materials and sought a ruling that they were not privileged. Although the defendant argued the materials reflected legal strategy and were created after consultation with counsel, the Court found that the defendant used the AI platform on his own initiative, without direction from counsel.

The Court’s Holding

The Court held that the communications were not protected by attorney-client privilege because they were not communications between attorney and client, were not confidential, and were not made for the purpose of obtaining legal advice from counsel. The Court emphasized that Claude was not an attorney, and communications with a third-party AI platform do not become privileged simply because the user later shares or intends to share the output with a lawyer.

Why Work Product Protection Also Did Not Apply

The Court also rejected work product protection. Although work product can protect materials prepared in anticipation of litigation, the doctrine generally protects the mental impressions and strategy of counsel or materials prepared by or for counsel. Here, the AI documents were created by the defendant himself, not by his attorney, at his attorney’s direction, or by an agent of counsel. As a result, the Court concluded that the documents did not qualify as protected work product.

Practical Implications for Florida Clients

This decision is important for Florida Clients because it highlights a growing risk: using public AI tools to summarize facts, analyze claims, prepare defenses, draft strategy, or evaluate legal issues may create discoverable communications. Clients may assume that because they are asking AI about a legal issue, the communication is private or protected. This case makes clear that assumption may be wrong.

What Clients Should Do Before Using AI in Legal Matters

Clients involved in litigation, insurance claims, condominium or HOA disputes, business disputes, employment matters, or any other legal controversy should avoid entering sensitive facts, legal strategy, attorney communications, confidential documents, or case analysis into public AI platforms without first speaking with counsel. AI can be a useful tool, but when used improperly, it may create records that an opposing party later seeks in discovery.

Bottom Line

The key takeaway is simple: AI is not your lawyer, and communications with AI are not automatically privileged. Until courts provide more guidance, Florida clients should treat AI communications about active or potential legal disputes as potentially discoverable and should consult their attorney before using AI to evaluate, summarize, or strategize about a legal matter. At Perez Mayoral, P.A., we encourage clients to consult an attorney before using AI to analyze or strategize about active legal matters. Seeking legal guidance first can help protect sensitive information and reduce the risk that communications may later become discoverable in litigation.

Disclaimer

This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Federal and State laws change frequently, and anyone relying on them should confirm that the law has not changed. It is best to consult a licensed Florida attorney for advice specific to your situation.