AI, Privilege, and Work Product: Conflicting Federal Decisions Create a New Risk Frontier | Blank Rome LLP
https://www.jdsupra.com/legalnews/ai-privilege-and-work-product-1228134/
Publish Date: 2026-03-18 10:55:00
Source Domain: www.jdsupra.com
Here are a few key points summarizing the article regarding the use of AI in litigation and the complexities surrounding privilege and work product protections:
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Recent Courts Decisions: Two recent federal court decisions diverge on whether AI-generated materials are protected by attorney-client privilege or work product doctrine. Judge Rakoff in the Heppner case concluded that AI output generated independently by a defendant was neither privileged nor protected, while Judge Patti in the Warner case found that work product rules applied regardless of attorney involvement.
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AI as Non-Person: Judge Patti characterized AI as a “tool, not a person,” implying that it should be treated similarly to software tools for work product protection purposes. This contrasts with Judge Rakoff’s view in Heppner, where AI’s third-party data policies were central to denying protections.
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Implication for Legal Teams: The decisions underscore that the law governing AI’s use in litigation remains unsettled and context-specific. Legal teams must carefully consider how AI might impact privilege and protect work product protections.
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Best Practices: Organizations should treat AI interactions as potentially discoverable, avoid using public AI tools for privileged information, conduct legal reviews of AI platform terms, and prefer enterprise AI tools that offer stronger confidentiality protections.
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Legal Oversight and Documentation: Using AI under attorney direction and documenting the workflow can strengthen work product claims. Separate arguments for privilege and work product protections are advised.
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Resistance to Intrusive Discovery: Parties should resist excessively broad AI-related discovery requests by arguing they are disproportionately irrelevant or aimed at protected mental impressions.
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Governance and Policy Development: Cross-departmental governance and evolving policies are needed to handle the ethical and legal use of AI in litigation effectively.
This summary provides an overview of the main themes and key recommendations emerging from the recent court decisions and expert opinions on AI use in legal contexts.
