AI, privilege, and discovery in view of ‘Heppner’ and ‘Morgan’
AI, privilege, and discovery in view of ‘Heppner’ and ‘Morgan’
Publish Date: 2026-05-27 13:17:00
Source Domain: www.reuters.com
- Federal courts are exploring the practical impacts of generative AI on litigation discovery as parties and attorneys increasingly use it for preparation.
- Two recent cases exemplify contrasting approaches: United States v. Heppner (criminal prosecution) and Morgan v. V2X, Inc. (civil employment discrimination action).
- In Heppner, the court ruled that AI-generated documents independently created by a defendant without attorney involvement did not qualify for attorney-client privilege or work product protection.
- The court emphasized that AI platforms do not fulfill the role of attorneys and lack confidentiality, thus denying protection.
- In contrast, the Morgan court held that work product protection applies to pro se litigants since they represent themselves in both roles as party and advocate.
- The court ruled that disclosing the plaintiff’s AI tool use was reasonable and established AI-specific protective order restrictions to safeguard confidentiality and privacy.
- Heppner and Morgan illustrate that disputes over AI-assisted litigation preparation are fact-specific, and courts are carefully analyzing these issues without adopting categorical rules.
- Companies and individuals should collaborate on clear protocols for AI use, including documenting instances when AI use is directed by counsel to safeguard potential protections.
- The contractual terms of AI platforms, including data training and third-party disclosures, are pivotal in determining permissible use under protective orders.
- As courts evolve their discovery practices in light of AI, the context and surrounding circumstances will remain critically important in shaping future disputes.
