Insight
Heppner and Privilege for Consumer AI Research
The Southern District of New York held that a defendant’s own research with a consumer AI tool was neither privileged nor work product.
Law checked through
In United States v. Heppner, Judge Jed Rakoff of the Southern District of New York ruled from the bench on February 10, 2026, with a written opinion on February 17, that documents a criminal defendant generated with the free consumer version of an AI service were not protected by the attorney-client privilege or the work product doctrine.
After receiving a grand jury subpoena and retaining counsel, the defendant researched the investigation on his own with the AI tool, entered information he had learned from his lawyers, produced reports outlining defense strategy and later sent them to counsel. The court reasoned that the AI tool is not a lawyer; that the provider’s terms permitted it to use and disclose conversations, so there was no reasonable expectation of confidentiality; that later sharing the outputs with counsel did not make them privileged; and that work product did not apply because the materials were not prepared by or at the direction of counsel.
The ruling is limited to its facts: a criminal case, a consumer tool and use without counsel’s direction. It does not decide how enterprise tools with confidentiality commitments, or AI work directed by counsel, should be treated. It is not binding in Texas. Its practical message for Texas lawyers and clients is plain: clients should not research their own legal matters in consumer AI tools, and lawyers should say so early.