Many Parker MacIntyre clients enjoy the benefits of communications that can be shielded from discovery under the attorney-client privilege and, in some cases, under the work product doctrine. With changing technologies such as AI now prevalent, we now are beginning to see court decisions that analyze and clarify what documents are and are not privileged. A recent decision from a highly respected court weighs in on the scope of the privilege for AI-generated documents.
According to a February 10, 2026, decision of the U.S. District Court for the Southern District of New York, documents created by consumer AI-generation programs are not protected by the attorney-client privilege. In the case, a criminal defendant had generated multiple documents using the AI tool Claude prior to hiring his counsel, then gave those documents to his counsel in the course of seeking advice.
The court’s analysis recited the elements necessary to establish the privilege, namely, (1) communications, (2) among only privileged parties, (3) made for the purpose of providing or obtaining legal advice. The judge then held that the privilege was lost when the information was shared outside of the attorney relationship because it was shared with the third-party tool, ie., Claude, which did not maintain confidentiality. Claude’s disclaimer made it clear that users should not expect confidentiality of the information. Claude’s Privacy Policy also explains that prompts – questions entered by consumers – may be disclosed to regulators and can even be used to train the AI model.
The court also held that the documents were not protected as work product. The work product doctrine protects (1) legal work product, (2) discussing legal strategy, (3) prepared by or at the direction of legal counsel, (4) in anticipation of litigation. The court declined to classify the reports as work product because the AI reports did not contain or reference the legal strategy of counsel, and in any event neither the defendant nor Claude were working at the direction of counsel.
The most important conclusion to be drawn from the case is that use of consumer AI tools is inconsistent with the confidentiality requirement that underpins both the attorney-client privilege and the work product doctrine. Despite the ruling, AI prompts using programs that maintain confidentiality and are not used for AI training, may still be protected under one or both doctrines, as would the resulting reports. The work product doctrine, in particular, would seem to apply if counsel directed the client or other person to enter the prompts. In that situation, the attorney’s request should be well documented in order to maximize the possibility of preventing disclosure as work product. The reports should be shared only with counsel, at least until such time as counsel permits further disclosure.
Finally, in a litigation setting, privilege logs should be kept clearly denoting the basis for the privilege and that the AI tool was used with the expectation of confidentiality. The entry should also state that the communication reflects legal advice from an attorney or that the work was done at the direction of counsel, or both.
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