The recent decision in United States v. Heppner offers an early judicial warning for litigants using public generative AI tools in active matters: a litigant’s conversations about litigation with a publicly available generative AI tool may not be protected by privilege. In what the court described as a new legal issue, the Southern District of New York held that a criminal defendant’s exchanges with Anthropic’s Claude were protected by neither attorney-client privilege nor the work product doctrine. While no reported Canadian decision has addressed the same fact pattern, Heppner is a useful prompt for Canadian counsel and clients to revisit privilege, confidentiality and the use of public AI in litigation.
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