header-logo header-logo

Home Login E-newsletter About us
20 March 2026 / Stacie Bourton , Tom Whittaker , Beata Kolodziej
Issue: 8154 / Categories: Features , Artificial intelligence , Technology , Privilege
printer mail-detail

Prompting privilege?

© Copyright LexisNexis 2026. All Rights Reserved.
244934

Can documents produced by AI systems be legally privileged? Stacie Bourton, Tom Whittaker & Beata Kolodziej consider the lessons to learn from recent cases
  • Two recent US decisions considered whether documents created using publicly available AI tools are protected by privilege—with contrasting outcomes.
  • A judgment in England & Wales has given an indication into how the courts here will approach confidentiality where documents are AI-created.
  • Factors relevant to potential future disputes about the intersection between AI and privilege, and steps organisations can take to mitigate the risk of waiving privilege in AI-generated documents.

On 10 February 2026, the US District Court for the Southern District of New York ruled that documents created by a defendant using a publicly available generative artificial intelligence (AI) tool pending a criminal investigation and sent to their lawyer were not covered by attorney-client privilege or work product privilege (United States v Heppner, No 25-cr-00503; the Heppner case).

On the same day, the US District Court for the Eastern District

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Read All
Sponsored by
Winckworth Sherwood—Charlotte Coleman & Qaisar Sheikh

Winckworth Sherwood—Charlotte Coleman & Qaisar Sheikh

Two promoted to partner in property litigation and education teams

Dorsey & Whitney LLP—Peter Knust

Dorsey & Whitney LLP—Peter Knust

Cross-border finance and restructuring specialist joins as of counsel in London

Powell Gilbert—Callum Beamish-Lacey

Powell Gilbert—Callum Beamish-Lacey

IP firm promotes litigator to partnership

NEWS
Read All
NLJ this week: Mazur and more—inside the litigation frontline

From blockbuster judgments to procedural shake-ups, the courts are busy reshaping litigation practice. Writing in NLJ this week, Professor Dominic Regan of City Law School hails the Court of Appeal's 'exquisite judgment’ in Mazur restoring the role of supervised non-qualified staff, and highlights a ‘mammoth’ damages ruling likened to War and Peace, alongside guidance on medical reporting fees, where a pragmatic 25% uplift was imposed

NLJ this week: Social media bans for children spark legal dilemmas
Momentum is building behind proposals to restrict children’s access to social media—but the legal and practical challenges are formidable. In NLJ this week, Nick Smallwood of Mills & Reeve examines global moves, including Australia’s under-16 ban and the UK's consultation
NLJ this week: Leasehold reform risks creating ‘forgotten freeholders’
Reforms designed to rebalance landlord-tenant relations may instead penalise leaseholders themselves. In this week's NLJ, Mike Somekh of The Freehold Collective warns that the Leasehold and Freehold Reform Act 2024 risks creating an ‘underclass’ of resident-controlled freehold companies
NLJ this week: Court of Appeal clarifies when a claim truly begins
Timing is everything—and the Court of Appeal has delivered clarity on when proceedings are ‘brought’. In his latest 'Civil way' column for NLJ, Stephen Gold explains that a claim is issued for limitation purposes when the claim form is delivered to the court, even if fees are underpaid
NLJ this week: Split FDRs could ease pressure—and boost settlements
The traditional ‘single, intensive day’ of financial dispute resolution (FDR) may be due for a rethink. Writing in NLJ this week, Rachel Frost-Smith and Lauren Guiler of Birketts propose a ‘split FDR’ model, separating judicial evaluation from negotiation
Copyright © 2026 LexisNexis
back-to-top-scroll