Heppner, Warner, Morgan: AI chats and privilege
Between February 10 and March 30, 2026, three federal courts considered the same question: are materials that a litigant created with the help of AI protected from disclosure. The answers differed. In New York, Judge Rakoff denied protection to a defendant’s exchanges with Claude. In Michigan and Colorado, magistrate judges recognized the AI chats of pro se plaintiffs as work product. There is no single federal position, but the three rulings already show which factors shape it.
Three cases compared
| United States v. Heppner | Warner v. Gilbarco | Morgan v. V2X | |
|---|---|---|---|
| Court | S.D.N.Y., Judge Jed Rakoff | E.D. Mich., Magistrate Judge Anthony Patti | D. Colo., Magistrate Judge Maritza Dominguez Braswell |
| Number | 25 Cr. 503 (JSR) | 2:24-cv-12333 | 1:25-cv-01991 |
| Date | February 17, 2026 | February 10, 2026 | March 30, 2026 |
| Proceeding | Criminal, party represented by counsel | Civil, pro se plaintiff | Civil, pro se plaintiff |
| Tool | Public Claude | ChatGPT | Not disclosed in the defense, but the court ordered the platform’s name to be given |
| Attorney-client privilege | No | Question resolved through work product | Question resolved through work product |
| Work product | No | Yes | Yes |
Heppner: AI is not a lawyer
After a grand jury subpoena and notice of target status, Bradley Heppner on his own prepared, with the help of public Claude, about 31 documents on possible charges, defenses and strategy, and then handed them to his lawyers. The FBI found the documents on seized devices.
Judge Rakoff held that attorney-client privilege does not apply for three reasons: Claude is not a lawyer, the exchange was not a communication with counsel, and the platform’s privacy policy did not create a reasonable expectation of confidentiality. Work product did not arise either, because the materials were created neither by counsel nor at counsel’s direction. Handing a finished AI output to a lawyer does not turn it into a privileged communication.
Update. The underlying criminal case ended in a guilty verdict on May 7, 2026; sentencing is scheduled for October 21, 2026.
Warner: a tool, not a person
A pro se plaintiff in an employment discrimination dispute used ChatGPT when preparing her case. The defendants demanded disclosure of all documents and information about the use of AI. Magistrate Judge Patti denied the request. Rule 26(b)(3)(A) protects materials prepared by a party in anticipation of litigation, not only by an attorney. The court called ChatGPT and similar systems tools, not persons, and noted that waiver of work product protection requires disclosure to the opponent or conduct that increases the likelihood of the materials reaching the opponent. The court additionally found the defendants’ request disproportionate and called it a fishing expedition.
The decision barely analyzes the privacy policy of the specific platform, and that is the main difference from Heppner in method.
Morgan: contractual terms for the platform
In a pro se plaintiff’s dispute with an employer, the defendant asked to restrict uploading confidential discovery materials into AI and to disclose the platform used. Magistrate Judge Dominguez Braswell recognized that work product covers a party’s AI-assisted mental impressions and that interacting with AI does not by itself mean waiver of protection. The platform’s name was not protected, however: it is needed to verify compliance with the protective order.
The court added an AI condition to the protective order: confidential information may be given to a platform only if the contract with it prohibits storing inputs and using them for training, restricts onward transfer, grants a right of deletion, and is confirmed in writing. The court distinguished Heppner as a criminal case with a represented party acting outside counsel’s control.
What decides the outcome
| Factor | Where it operated |
|---|---|
| Who initiated the work with AI: the party on its own or at counsel’s direction | Heppner: on his own, without direction; no protection |
| Criminal or civil proceeding | Heppner criminal; Warner and Morgan civil under Rule 26 |
| Party’s status | In Warner and Morgan pro se, and work product protects their own materials |
| Platform terms | In Heppner the privacy policy excluded an expectation of confidentiality; in Morgan contractual guarantees became a condition of use |
| Type of protection | Privilege did not arise in Heppner; work product arose in Warner and Morgan |
All three decisions were issued by trial courts, two of them by magistrate judges. These are not appellate precedents, and they cannot be presented as a single nationwide rule.
What this means for legal AI
For users: consumer AI cannot be treated as a confidential extension of the legal team without contractual guarantees and a documented instruction from counsel. What was created independently before turning to counsel is not covered by protection.
For developers and vendors: the condition from Morgan is a ready model of requirements for assessing an AI vendor in legal work. Storage of inputs, use for training, subcontractors, deletion and written confirmation of controls. A platform without such terms in the contract is unsuitable for working with materials under a protective order, and after Morgan this is no longer a recommendation but a requirement of a specific court.
Sources
- United States v. Heppner, S.D.N.Y., 25 Cr. 503 (JSR), memorandum of February 17, 2026: text, Leagle, DOJ case page
- Warner v. Gilbarco, Inc., E.D. Mich., 2:24-cv-12333, February 10, 2026: text, CourtListener
- Morgan v. V2X, Inc., D. Colo., 1:25-cv-01991, March 30, 2026: CourtListener, Kirkland analysis with the text of the protective order condition
- Comparison of Heppner and Warner: Paul, Weiss