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AI and Legal Protection: Two February Rulings, Different Facts

Heppner and Warner address AI-related materials in different proceedings. Their reasoning makes the facts, counsel’s involvement and the protection claimed central to the analysis.

Wes ToddFebruary 24, 20262 min read · 2,471 readers this week

What the two courts decided

In United States v. Heppner, Judge Jed Rakoff ruled on February 10, 2026 that a defendant’s Claude-related reports were protected by neither attorney-client privilege nor work product. His February 17 memorandum explains the ruling. Heppner had used the tool on his own initiative; the court considered the communications, the cited privacy terms and the absence of counsel’s direction.

In Warner v. Gilbarco, a self-represented civil plaintiff faced a demand for materials concerning her AI use. Judge Anthony Patti’s February 10 order, pages 10–12, denied discovery and upheld work-product protection. The opinion distinguished work-product waiver from attorney-client privilege waiver.

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Why the distinction matters

These decisions concern different records, procedural settings and analyses. They do not supply one universal rule for every conversation with an AI system. Calling them opposite answers to an identical question loses the facts that drove each ruling.

For executives overseeing litigation operations, the question is how approved tools, sensitive information and counsel’s involvement are documented. A platform label alone does not establish legal protection. The actual workflow and applicable law matter.

A useful internal review identifies which tools are used on matters, what information is shared, who directs the work and which protections have been assessed by counsel. These are operating questions raised by the decisions, not a finding about any reader’s practices or a promise that a particular configuration will preserve privilege.

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