Last week’s Privilege Point described a Southern District of New York opinion rejecting privilege protection for AI-related communications but surprisingly also rejecting a criminal defendant’s work product protection claim. United States v. Heppner, — F. Supp. 3d —, 2026 U.S. Dist. LEXIS 32697 (S.D.N.Y. Feb. 17, 2026).
A week earlier, in Warner v. Gilbarco, Inc., a Detroit federal magistrate judge addressed a civil plaintiff’s work product protection claims “concerning her use of third-party AI tools” and reached the opposite conclusion. Case No. 2:24-cv-12333, 2026 U.S. Dist. LEXIS 27355, at *10-11 (E.D. Mich. Feb. 10, 2026). Magistrate Judge Anthony Patti didn’t address the attorney-client privilege issue because the AI-related communications were “subject to protection under the work-product doctrine, which Plaintiff is permitted to assert.” Id. at *10-11. He cited Fed. R. Civ. P 26(b)(3)(A) — which on its face can cover “documents and tangible things that are prepared . . . by . . . another party.” Id. (citation omitted). That’s about as clear as a rule can be.
His opinion then identified what is likely to be the main battleground on the work product side — whether public AI service providers’ ugly confidentiality disclaimers would abort the robust work product protection. Correctly explaining that “work-product waiver has to be a waiver to an adversary or in a way likely to get in an adversary’s hand,” the court noted that “ChatGPT (and other generative AI programs) are tools, not persons, even if they may have administrators somewhere in the background.” Id. at *12. Stay tuned.