BesTPRaCTiCesFoRmainTainingPRiVilegewhenusingaRTiFiCialinTelligenCe
Health Care Law Section
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that a document does not become privileged simply because it is later sent to an attorney. Finally, because there was no evidence that counsel directed the AI use or that the materials were prepared pursuant to counsel’ s litigation strategy, there was no work-product protection.
On the same day Heppner was decided, another court reached a different conclusion in Warner v. Gilbarco, Inc. There, a pro se plaintiff asserted race-based employment discrimination. During discovery, the defendants sought documents related to the plaintiff’ s use of generative AI tools, arguing that use of AI constituted disclosure to a third party and therefore waived work-product protection. The court disagreed. It held that AI-generated materials prepared in anticipation of
litigation were protected work product and that use of a generative AI platform, standing alone, did not waive that protection. The court reasoned that AI is a tool, not a person, and therefore there was no disclosure to an adversary. The court also recognized that pro se litigants may assert work-product protection over their own generated materials.
Taken together, Heppner and Warner now function as the benchmarks for analyzing AI use in relation to attorney-client privilege and the work-product doctrine. Notably, the cases reflect conflicting approaches to the confidentiality implications of using AI platforms, reinforcing the need for caution and risk assessment. To mitigate potential risks, organizations should adopt well-defined practices when incorporating AI into their workflows. These include understanding the technology and its risks; removing identifiable information; using internal AI environments; maintaining human oversight; implementing internal policies and training; labeling AI-assisted outputs as privileged or confidential when appropriate; maintaining confidentiality; and monitoring regulatory guidance. Ultimately, while AI offers substantial benefits, these recent decisions demonstrate that privilege cannot be assumed and must be actively protected through informed decision-making, risk assessment, and attorney oversight. n
Author: Rebecca Siviglia – Moffitt Cancer Center
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