When AI Becomes the Third Party: Courts Divide Over Privilege and Work Product Protection

Short summary

In United States v. Heppner, the SDNY held that communications with Claude are not protected by attorney-client privilege or work-product doctrine because the AI is not an attorney and disclosures to third-party platforms waive confidentiality. However, a Michigan federal court reached the opposite conclusion in Warner v. Gilbarco, finding ChatGPT-assisted work product protected. The split highlights emerging uncertainty around AI's role in legal privilege.

• •SDNY held communications with Claude are not privileged or work-product protected
• •A Michigan court reached the opposite result for ChatGPT-assisted work product
• •The split creates uncertainty on whether AI can function as counsel's agent for privilege purposes

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