A Feb. 17 federal court ruling has found that neither the attorney-client privilege nor work product protection apply to a criminal defendant’s self-directed prompts and large language model outputs. In the ruling in USA v. Heppner, US District Judge Jed S. Rakoff ordered the production of 31 documents generated by the defendant using Anthropic’s Claude, notwithstanding that the defendant had incorporated information obtained from counsel and later shared the AI outputs with his attorneys. In a recent legal update, Hunton partner Meghan Podolny and associate Jessie Purtell discuss how the ruling provides early judicial guidance on privilege issues related to AI-generated materials, an area with limited existing case law.
Although the ruling occurred in a criminal proceeding, the reasoning should apply equally across all litigation. The ruling could therefore have serious implications for policyholders in coverage litigation and mandates a cautionary approach to client-guided “research” using open ai models.