The Lawletter Vol. 51 No. 2

Becky Schanz—Senior Attorney

      As recently noted by Judge Jed Rakoff, “[g]enerative artificial intelligence presents a new frontier in the ongoing dialogue between technology and the law.” United States v. Heppner, 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697, at *14 (S.D.N.Y. Feb. 17, 2026). Courts are just beginning to wrestle with the use of artificial intelligence (“AI”), but a few recent cases address whether privilege applies to AI use.

      In Heppner, the district court held that the defendant’s conversations with an AI platform were not protected as work-product or by attorney-client privilege. Id. at *1. The defendant had been indicted on charges of securities and wire fraud and a search of his home produced his communications with a generative AI platform. Id. at *2-4. The defendant asserted that the communications occurred in preparation for a possible indictment and were privileged because they included information from his attorney, were to prepare for speaking with his attorney, and were ultimately shared with his attorney. Id. at *4-5.

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