Extract from Phil Favro’s article “Protecting Privilege and Work Product in Discovery After Heppner and Warner”
Generative artificial intelligence and long-standing evidentiary protections have recently collided, as evidenced by two new cases: United States v. Heppner and Warner v. Gilbarco. Heppner concluded that neither the lawyer-client privilege nor the attorney work product doctrine applied in a criminal matter to AI content generated in response to a defendant’s inputs that were not made at the direction of his lawyers. In contrast, Warner determined that work product applied to AI-created materials for a pro se plaintiff and forbade the discovery of this information in the context of an employment discrimination lawsuit.
While Heppner and Warner reached opposite results based on their unique factual and legal contexts, they provide insights on how clients and counsel may consider approaching the discovery process when using AI tools. This is particularly the case when clients wish to use AI to search for, identify, and review electronically stored information (ESI) to satisfy production obligations in discovery. Collectively, these cases—particularly Heppner—spotlight the need for counsel to adopt protocols that ensure they ultimately drive the discovery process on behalf of the client. As part of that process, counsel should consider the role of service providers in effectuating the use of AI tools for document review and determine how they will oversee and supervise providers’ use of those tools.
