AI Isn’t Your Attorney
Court Rules That AI-Generated Documents & Queries Are NOT Protected by Privilege
Jaimee K. Wellerstein, Esq., Bradley + Wellerstein, CALSAGA Legal Advisor
Across the country, AI is becoming an increasingly popular tool for all kinds of issues. However, it’s ubiquity does not mean that it’s suitable for all purposes, and new court rulings are making it a much riskier proposition in any legal-adjacent matters.
In US v. Heppner, the United States District Court for the Southern District of New York ruled that documents generated through any public AI platform were not protected by attorney-client privilege or the work product doctrine. The Court granted access to documents generated with AI by the defendant.
The Defense argued that the AI-generated documents were created before the case and were shared with his attorneys, and that they were generated based on input from his counsel, in an attempt to shield them from production.
The Court ultimately ruled in favor of discovery on several grounds:
- The AI Documents were not communications between a client and their counsel, but rather made between the client and a public AI tool. This was compared to “asking a friend for legal advice” in the ruling.
- The AI Documents were not confidential because the client shared his prompts with a 3rd party commercial platform which is publicly accessible and whose terms of service explicitly states that it collects data on both prompts and outputs and may disclose it to 3rd
- The AI Documents were not created for the purpose of obtaining legal advice from counsel. The AI Terms of Service expressly disclaim the ability of the AI tool to give legal advice.
What This Means for Security Companies
While this case did not arise in the security industry, the impact is directly applicable. Businesses and employees are relying more and more on AI for the generation of documents and, in some cases, advice. Anything generated by public AI tools such as ChatGPT, Claude, Gemini, and Grok should be treated as though it is discoverable, even if later discussed with counsel. That includes requests for dealing with sensitive legal issues, documents generated by them, notes, prompts, and all other data related to use of AI. Those prompts that ask “How do we document this termination to avoid being sued?” are now potentially subject to discovery.
Lessons Learned for Security Employers
Employers should strongly consider Privacy & Use policies for public AI tools with their employees to ensure that AI is not misused or fed potentially sensitive or confidential information. This includes review of confidential legal documents.
Employers should expressly discourage the use of public AI tools for anything legal or legal-adjacent to avoid a potential waiver of privilege by providing confidential information to a public tool.
Review the existing privacy policies of any AI tools in use, whether public or private, to determine if the information will remain confidential or can be shared with 3rd parties. Any tools which share with 3rd parties for any reason should be treated as a risk and not provided any confidential or sensitive information.
Conclusion
Ultimately, employers should remain vigilant about the use of AI in the workplace and emphasize the importance of avoiding a waiver of privilege by feeding sensitive or confidential information into a public tool. While the development of training and policy language is critical, ongoing diligence about the proper use of AI tools remains the only effective safeguard.
Employers should rely on direct discussion with counsel for any sensitive issues, from contract revision to employee concerns, to ensure any discussion and documentation remains protected by privilege or client confidentiality and should avoid feeding any such queries into public AI tools.
Jaimee K. Wellerstein, Esq. is the co-managing Partner. Representing employers in all aspects of employment law, Ms. Wellerstein collaborates with her clients to develop proactive business and legal strategies to try to avoid workplace conflict and employment disputes. She provides legal advice and counsel to numerous businesses, including conducting individualized training programs for both management and employees.
Ms. Wellerstein performs internal audits of her clients’ employment practices to ensure compliance with the rapidly-changing world of employment laws, and guides investigations of employee allegations regarding harassment, discrimination, and employee misconduct. When litigation cannot be avoided, Jaimee K. Wellerstein aggressively defends her clients against employment law claims in the state and federal courts, as well as at administrative hearings, arbitrations, and mediations. Having defended numerous representative and individual lawsuits on behalf of her clients, Ms. Wellerstein is a skilled litigator and negotiator with a broad spectrum of experience upon which to draw.
A frequent speaker on numerous topics, including employment law and contract law, Ms. Wellerstein regularly conducts training seminars and programs for managers and employees in all areas of employment practices and policies.