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

Womble Bond Dickinson—Paula Myers

Womble Bond Dickinson—Paula Myers

Womble Bond Dickinson appoints Paula Myers to private capital team in Leeds

mfg Solicitors—five promotions

mfg Solicitors—five promotions

Law firm mfg Solicitors announces five promotions at Birmingham office

Brabners—six promotions

Brabners—six promotions

Brabners adds six to partnership in record year for partner promotions

NEWS
The legal profession's AI challenge extends far beyond fabricated case citations, according to a warning about the next phase of technological risk
Law firms should use the transition period before the Financial Conduct Authority (FCA) assumes anti-money laundering (AML) supervision to strengthen governance and compliance, experts have warned
Cross-border disputes increasingly demand creative approaches to gathering evidence, with litigators needing to look beyond traditional letters of request
A Court of Appeal ruling has clarified the distinction between contracts of 'indefinite' and 'perpetual' duration, with potentially significant implications for commercial drafting
The Court of Appeal was entitled to uphold the government's decision to proscribe Palestine Action as a terrorist organisation, according to an analysis of the ruling
back-to-top-scroll