Use of Artificial Intelligence and the Limits of Privilege
A recent opinion from the United States District Court for the Southern District of New York* provides a timely reminder that the attorney-client privilege and work product doctrine have clear limits when individuals independently use artificial intelligence platforms in anticipation of litigation. This specific case arose from a criminal fraud prosecution where the defendant, acting without the direction of counsel, used an open AI platform to generate documents outlining potential defenses and legal analysis after receiving a grand jury subpoena. Those documents were later seized pursuant to a search warrant. The defendant argued that the materials were protected by the attorney client privilege and the work product doctrine because they related to anticipated litigation and were eventually shared with legal counsel.
The Court rejected both arguments holding that the attorney client privilege did not apply because the AI platform was not a lawyer, the communications were not confidential, and the defendant was not seeking legal advice from a licensed attorney. The Court further held that the subsequent sharing of the AI-generated materials with defense counsel did not retroactively render them privileged. With respect to work product protection, the Court emphasized that the documents were not created at defense counsel’s direction and did not reflect counsel’s mental impressions, legal theories, or litigation strategy. As a result, the materials were discoverable.
Implications for Healthcare Litigation
While the decision has understandably drawn some attention because it addresses artificial intelligence, it does not represent a radical departure from established privilege law. Instead, it applies long standing principles to a modern research tool. Healthcare defendants have encountered comparable issues for decades when clinicians—before consulting counsel—conduct independent literature reviews, search online medical resources such as UpToDate, or perform general internet searches related to an adverse event. Any documents generated through these activities, and the searches themselves, may be discoverable through written discovery or explored during deposition. The practical risk has now simply expanded with the availability of AI platforms. This exposure applies not only to open AI tools, such as publicly accessible generative AI products, but also to closed AI platforms used within healthcare organizations. Even where data is not shared publicly, research or analysis conducted independently and outside the direction of defense counsel is not protected by the attorney client privilege or the work product doctrine. Plaintiffs’ counsel are increasingly alert to this issue and, as a result, discovery requests and deposition questioning are likely to explore whether healthcare providers relied on AI or other online tools to research medical or legal issues following an incident. Counsel on both sides can be expected to incorporate these questions routinely into discovery and expert examinations.
Risk Management Considerations
When matters are assigned to defense counsel, clients are routinely instructed not to conduct independent research or investigation into medical or legal issues associated with the case. This includes literature searches, online research, and AI based queries. Following this guidance helps prevent the creation of non privileged communications that may later be discoverable by opposing counsel. Due to the growing prevalence of AI tools, healthcare providers concerned about potential litigation should refrain from conducting research on any platform—including AI platforms—until the matter is reported, defense counsel is assigned, and research is undertaken at counsel’s direction.
Conclusion
The Southern District of New York’s opinion serves as a cautionary example rather than a departure from settled law. Artificial intelligence is simply the latest iteration of a familiar issue: research or analysis conducted outside the attorney client relationship and without counsel’s direction is not privileged. For healthcare providers, risk managers, and defense counsel alike, the lesson is clear—early communication, disciplined consultation, and controlled use of evolving tools are critical to preserving privilege and managing litigation risk effectively.
* United States v. Heppner, No. 25-cr-00503-JSR, 2026 WL ___ (S.D.N.Y. Feb. 17, 2026) (Rakoff, J.).
