We recently drafted an article that discussed court decisions that reached very different conclusions about how the attorney-client privilege and work product doctrine apply to materials submitted to and created by generative AI (GenAI) tools. A recent decision from the U.S. District Court for the Southern District of New York, United States v. Heppner, underscores the risks of using publicly available GenAI tools in connection with legal matters. The court ruled that client-written prompts and outputs generated using a publicly version of Claude were not protected, and notably concluded no privilege existed rather than conducting a waiver analysis. In contrast, the court in Concord Music Group v. Anthropic, found that GenAI prompts and outputs from Claude generated by plaintiffs during a pre-suit investigation into potential infringement by Anthropic were protected by the work-product doctrine and did not have to be produced.
To read our analysis of these recent decisions and practical takeaways for safeguarding privilege while using GenAI, click here to access the article.