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Privilege and Work Product in the Age of GenAI

Many people use generative artificial intelligence  (GenAI) tools to help organize, summarize and understand complicated information. It might seem logical, then, to have GenAI explain an impenetrable complaint full of legalese or your attorney’s complex legal advice regarding it. But, by doing so, you might be waiving two important protections: the attorney client privilege and the work product doctrine.

What Are Attorney Client Privilege and Work Product Doctrine?               

As the name suggests, the attorney client privilege generally protects the confidentiality of communications between client and lawyer. Those communications cannot be discovered or used by an adverse party except in limited circumstances. A distinct concept – the work product doctrine – protects mental impressions, thoughts and strategy, including information prepared by the client in anticipation of litigation, again except in limited circumstances. These concepts work in tandem to create a zone of confidentiality in which the attorney and client can be honest and direct with each other and develop legal strategy without the prying eyes of an adverse party.               

So, what happens when a client invites ChatGPT or another GenAI tool into this zone of confidentiality? The law in this area is new and unsettled. Two recent rulings, issued on the same day by two different courts, reached diametrically opposed conclusions.

How the Courts View Confidentiality, Privilege and GenAI.               

In a criminal fraud case in the Southern District of New York, U.S. v. Heppner, the defendant claimed attorney client privilege and the work product doctrine prevented the government from reviewing communications he had with Claude, in which he discussed his investigation and his lawyer’s defense strategy. The presiding judge disagreed. Because Claude’s terms of use expressly state it cannot give legal advice – and it is not an attorney – there was no attorney-client privilege. Secondly, because the defendant divulged the information to Claude of his own accord and not at the direction of his lawyer, no work product protection applied. Regardless, because Claude warns users that it will use any communications to “train” itself and such communications could be disclosed in response to subpoena, the defendant had no expectation of privacy and waived any privilege or work product protection that might exist.               

Conversely, a magistrate judge in the Eastern District of Michigan ruled in Warner v. Gilbarco, Inc., that a defendant in a civil case was not entitled to discovery of a pro se plaintiff’s use of GenAI tools in connection with the litigation. The Court deemed the plaintiff’s use of GenAI protected by the work product doctrine because the documents were prepared in anticipation of litigation. Further, the Court held that sharing the information with ChatGPT – even though, like Claude, there is no assurance of privacy – did not waive the protection because GenAI chatbots “are tools, not persons, even if they may have administrators somewhere in the background.” While this conclusion may be explained by the plaintiff representing herself, the Court also expressed concern that treating use of such GenAI tools as a waiver “would nullify work-product protection in [the] modern drafting environment.”

Practical Takeaways 

Given the unsettled and evolving legal landscape surrounding generative AI, the following practical takeaways highlight key risks and considerations for clients and attorneys. 

Do not assume GenAI interactions are confidential:  Courts may view disclosures to GenAI tools as voluntary sharing with a third party, potentially waiving any privilege protection.

GenAI may be treated differently depending on context and court:  Some courts may view GenAI as a mere drafting or thinking aid, while others may treat it as an external recipient that breaks confidentiality. Outcomes may depend on jurisdiction, case posture and whether a party is represented by counsel.

Consult counsel before using GenAI in legal matters:  Until courts reach consensus, clients and attorneys should explicitly discuss whether, when and how GenAI tools can be used without risking waiver of privilege or work product protections.

Should you have any questions regarding these court decisions, please contact Mr. Lefevre. 

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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.

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