On February 10, 2026, federal district court Judge Jed S. Rakoff ruled from the bench in the Southern District of New York that the attorney-client privilege and the work product doctrine did not protect legal strategy materials that a criminal defendant generated using a generative AI tool, when he used a public version of the tool and was not instructed by his attorney to generate these materials. On February 17, 2026, the court issued a written memorandum explaining its reasoning.
The question presented – an issue of first impression – was: “whether when a user communicates with a publicly available AI platform in connection with a pending criminal investigation, are the communications protected by attorney-client privilege or the work product doctrine?” The court’s answer was no given the unique circumstances of the case – namely, that no lawyer was involved in the back-and-forth with the AI tool, and the tool itself was a public (i.e., non-confidential) version.
Below, we summarize the background of the case, the decision, and key takeaways on AI and Legal Privilege.Continue Reading AI and Legal Privilege: Key Takeaways from US v. Heppner
