Client Alert: “It Depends: A Comparison of Recent Rulings Regarding AI Use and Privilege” by Katherine Charonko and Elizabeth Stryker
About the Authors:
Katherine E. Charonko is Bailey Glasser’s Electronically Stored Information & Technology Practice Group Leader who she provides strategic guidance in some of the nation’s most complex and consequential litigation and is part of national trial teams in state and federal courts across the country. Ms. Charonko is nationally ranked in the Chambers USA, USA Nationwide-Product Liability: Plaintiffs category and was named a 2026 Lawdragon 500 Leading Litigator in America. She was also named a 2026 winner of the Legaltech / ALM 2026 Monica Bay Women of Legal Tech Award.
Elizabeth L. Stryker is a litigator and member of the firm’s ESI & Technology Practice Group. Ms. Stryker was named a 2025 Lawdragon 500 X – The Next Generation as well as a Best Lawyers’ Ones to Watch, among other recognitions.
Two federal courts have issued rulings regarding whether a party’s use of generative AI tools were protected by the attorney-client privilege or work product doctrine.The answer, as attorneys are all too familiar with, is that it depends.
In February 2026, two courts reached different conclusions, with one (in United States v. Heppner, 25 Cr. 503 (JSR), 2026 WL 436479 (S.D.N.Y. Feb. 17, 2026)) finding that a defendant’s use of an AI tool was not privileged or protected, and another (in Warner v. Gilbarco, Case No. 2:24-cv-12333, 2026 WL 373043 (E.D. Mich. Feb. 10, 2026)) determining that a pro se litigant’s use of AI tools was protected by the attorney-client privilege and work product doctrine.
In the Second Circuit, a client’s use of generative AI tools to seek legal advice without direction from his counsel is likely not protected by the attorney-client privilege or work product doctrine. In Heppner, the court analyzed the attorney-client privilege in the context of the defendant’s use of AI tools to seek advice regarding a pending criminal investigation and found that the privilege did not apply for several reasons. The court opined that because the AI tool is not an attorney, then that alone disposed of his privilege claim. Heppner, 2026 WL 436479, at *2. Next, the Heppner court determined that the communications were not private and, therefore, not privileged. The court was persuaded by the AI platform’s privacy policy and found that the defendant had no reasonable expectation that his prompts to the AI tool would remain private. Id. at *3. Finally, the court examined the defendant’s actions and determined that he did not use the AI tool for the purpose of obtaining legal advice. Id.