As reliance on AI platforms grows, so do the legal issues surrounding the technology.
A recent Decision out of the Southern District of New York raises an interesting question: Are client conversations with AI protected by attorney–client privilege? According to the court, the answer is no.
In the case, a criminal defendant—acting on his own—shared detailed case information with an AI tool to get “strategy advice.” The government demanded the AI prompts and outputs, and the court held the materials were not privileged because they were not communications with counsel, they were not made at counsel’s direction, and there is no reasonable expectation of privacy when using public AI tools.
It is a narrow fact pattern, but the implications are broad. As more people turn to AI for guidance, they may be creating discoverable material without realizing it.
Our firm is closely monitoring this evolving case law and is already adapting our practice to stay ahead of this evolving area, including by:
- Instructing clients of the risks of discussing their cases with AI platforms.
- Addressing AI use during EBTs and discovery to identify any discoverable AI‑generated materials early.
- Updating internal training and policies so our attorneys remain current on developing AI case law.
Courts will continue grappling with the legal consequences of AI use. We continue to monitor these developments closely to protect our clients and ensure our practice stays at the forefront of this quickly changing landscape.