While not California specific, a first-of-its-kind ruling in federal court establishes that a client’s use of AI-generated chat content is not protected by an attorney-client privilege or work product doctrine. You can find a summary of the case, United States v. Heppner, a criminal securities fraud case, here. This is important because HR professionals, business owners and employees themselves are utilizing AI to research and respond to employment-related disputes in increasing numbers. Under the ruling, any factual or strategic information would be discoverable and can be used by the opposing party in subsequent litigation.
In it’s reasoning, the court opined that establishing privilege requires confidential communication between a client and licensed attorney. Further, it established clients have no reasonable expectation of privacy in their conversations with a chatbot, especially since the terms of an AI platform generally specifically disavow giving legal advice and reserve rights to collect, retain and disclose user input/output.
Accordingly, a few tips to minimize risk of detrimental AI data being used against you in future litigation:
- Call a lawyer first. Before going down an AI rabbit-hole of facts and potential admissions, seek counsel,
- Avoid putting confidential facts or legal strategy into public AI tools; and
- Do not assume sharing an AI conversation with counsel can protect the privilege.