header-logo header-logo

Prompting privilege?

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

NLJ Career Profile: Hugo Plowman, Mishcon de Reya

NLJ Career Profile: Hugo Plowman, Mishcon de Reya

From global fraud cases to fishing off-grid, Mishcon de Reya’s chair of dispute resolution Hugo Plowman discusses mentors, management switching off

Maguire Family Law—Jennifer Hudec, Ciara Florey, Alice Ferguson & Ruth Wynn

Maguire Family Law—Jennifer Hudec, Ciara Florey, Alice Ferguson & Ruth Wynn

Maguire Family Law announces partner promotion and new hires amid a record year for enquiries

Switalskis—Rebecca Parry & Hannah Gamble

Switalskis—Rebecca Parry & Hannah Gamble

Switalskis wills and probate team extends reach with two appointments

NEWS
Restrictions on workplace non-disclosure agreements could make settlements slower, more complex and more expensive when reforms expected in 2027 take effect
Private prosecutors face closer scrutiny under Crown Prosecution Service guidance designed to strengthen accountability and consistency when intervention is requested
Foreign states cannot necessarily claim immunity for cyber operations launched abroad against computers in Britain, following a divided Supreme Court ruling
Defendants who make unsupported complaints about their lawyers risk losing legal aid while confiscation proceedings continue without representation
Lawyers advising Russian clients face different sanctions restrictions across the UK, EU and US, despite their shared objective of increasing pressure on Russia
back-to-top-scroll