SDNY: Client’s GenAI-Generated Legal Research Not Protected by Privilege

A new ruling from the Southern District of New York has implications for anyone using GenAI tools in connection with litigation, government investigations, or legal advice. On February 17, 2026, in U.S. v. Heppner, Judge Jed Rakoff issued a written opinion holding that electronic documents a defendant created using the consumer version of the GenAI tool Claude are not shielded by attorney-client privilege or work product protection when seized pursuant to a search warrant at the defendant’s premises. This alert breaks down the court’s reasoning and provides practical steps to help preserve privilege when using GenAI tools.

What Happened

Defendant Bradley Heppner used the consumer version of Claude to conduct legal research in anticipation of litigation after receiving a grand jury subpoena. The defendant incorporated communications and information from his attorneys into his prompts, intended to share the GenAI outputs with counsel, and ultimately did so. Despite these facts, the court rejected both of Heppner’s privilege claims.

The Court’s Reasoning

Attorney-Client Privilege

Judge Rakoff concluded that communications between Heppner and Claude, including the prompt inputs and outputs to and from Claude, could not be privileged for three reasons:

• No attorney-client relationship. Attorney-client privilege requires communication between an attorney and client. While there is no dispute that Claude is not an attorney, the court noted that GenAI inputs, like other internet-based software, are not intrinsically privileged and that all privileges require, among other things, “a trusting human relationship” with a licensed professional who owes fiduciary duties and is subject to discipline. A GenAI platform cannot fulfill this role.
• No reasonable expectation of confidentiality. The consumer version of Claude trains on user data, and its privacy policy permits disclosure of user information to third parties, including governmental regulatory authorities without a subpoena in connection with claims, disputes, or litigation. By using the tool under these terms, Heppner was on notice that his communications might be disclosed, defeating any claim of confidentiality.
• No communication for purposes of obtaining legal advice. There is no attorney-client protection where counsel does not direct or suggest a client use GenAI to seek legal advice. Heppner’s independent decision to use Claude did not create privilege even where he intended to share — and did share — his findings with counsel. Judge Rakoff did note that privilege may have extended to Claude had counsel directed Heppner to use it, while rejecting the argument that “Heppner had created the AI documents for the purpose of speaking with counsel to obtain legal advice.”

Work Product Doctrine

Heppner’s GenAI-generated documents were also not protected work product because they were not prepared by or at the direction of counsel and did not reflect counsel’s legal strategy. The court declined to follow Shih v. Petal Card, Inc., a prior decision extending work product protection to client-prepared materials, reasoning that such an expansion would undermine the doctrine’s purpose of protecting attorneys’ mental processes rather than the individual’s thought process.

What This Means for You

This decision raises potential concerns for clients who use GenAI tools in connection with legal matters. Key implications include:

• Consumer GenAI tools may pose privilege risks. The court’s analysis focused heavily on the privacy policies and data practices of consumer, non-enterprise GenAI platforms. Documents, inputs, and outputs created for or by these tools may be discoverable. Additionally, information or advice from a client’s attorney entered by clients into these GenAI platforms risk losing the entire attorney-client privilege.
• Enterprise GenAI tools may be treated differently. Enterprise-grade GenAI platforms typically do not train on user inputs and include contractual confidentiality protections. The particular version of Claude used by the individual did not provide such protections. Courts may view these tools more favorably when assessing reasonable expectations of privilege and confidentiality.
• Attorney direction matters. The distinction between a client acting independently and a client acting at counsel’s instruction may determine whether privilege extends to documents, inputs, and outputs created for or by these tools. Clients should use extreme caution performing their own independent legal research through GenAI tools or any other means without first getting direction from their attorneys, acting only under that attorney direction, and clearly documenting the attorney direction as part of the process.

Recommended Actions

To help preserve privilege when using GenAI tools or performing research in legal contexts, we recommend the following:

• ▢ Use enterprise GenAI platforms. Whenever privileged, confidential, or sensitive information is involved, only use an enterprise GenAI solution that does not train on inputs and contractually commits to maintaining confidentiality.
• ▢ Document attorney direction. When clients use GenAI or other research tools at counsel’s request, memorialize that instruction. Consider including language in prompts or notes such as: “I am conducting this research at the direction of counsel in connection with [specific matter].”
• ▢ Update privilege log practices. Privilege logs covering GenAI-assisted communications or work product should articulate the privilege assertion and confirm that the GenAI tool was used with an expectation of privilege and confidentiality.
• ▢ Review GenAI vendor agreements. Assess privacy policies and terms of service for any GenAI tools used in connection with legal work to understand data retention, training, confidentiality, and disclosure practices.

Questions?

If you have questions about how this ruling may affect your organization’s use of GenAI tools or your legal matter strategy, please contact your Mintz client service team or one of the authors above.

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