When clients use AI: SDNY Court signals boundaries of privilege and work product protection
March 02, 2026
When clients use AI: SDNY Court signals boundaries of privilege and work product protectionMarch 02, 2026 On February 17, 2026, the Honorable Jed S. Rakoff of the US District Court for the Southern District of New York issued a written decision with potentially far reaching implications for whether documents created using artificial intelligence (AI) are protected by the attorney-client privilege or the work product doctrine. The written ruling, which followed a bench ruling on February 10, 2026, holds that documents memorializing communications a client had with a generative AI platform and that he later shared with counsel were not protected by the attorney-client privilege or the work product doctrine. The ruling makes clear that communications with AI tools in connection with legal advice and strategy are not automatically protected by the attorney-client privilege or the work product doctrine, particularly where the communications and the records that memorialize them do not reflect communications with counsel, the AI user has no reasonable expectation of confidentiality in communications with the third-party AI platform, and the records were not prepared at the direction of counsel or for the purpose of seeking legal advice.
Courts will continue to develop a framework for handling AI generated materials in the months and years ahead. As judges grapple with rapidly evolving AI technologies and long standing legal doctrines, it will be important to monitor how they define the boundaries of attorney-client privilege and work product protection in this new context. Relatedly, as more companies and their executives turn to AI tools for assistance in workstreams, it is important to recognize that communicating with third-party AI tools regarding legal advice or litigation strategy can implicate attorney-client privilege protection. Outside counsel, too, should consider risks inherent in using third-party AI platforms, including as they relate to confidentiality, the attorney-client privilege, and the work product doctrine. Key contacts
Ronald W. Zdrojeski Partner New York, United States Negar Tekeei Partner New York, United States Michael Bahar Partner Washington, DC, United States Rachel M. Reid Partner Atlanta, United States Andrea L. Gordon Partner Washington, DC, United States Amy R. Albanese Senior Associate New York, United States Brian L. Rubin Partner Washington, DC, United States Latest Insights
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