Recently, in the case of United States vs Bradley Heppner, Judge Rakoff ruled that a defendant's conversations with Claude, concerning defense strategy, were not subject to privilege. Having now read the ruling, I believe it is clearly in error, and it is unlikely to be repeated in other courts.
By this, I do not mean that all conversations with AI chatbots are privileged. Rather, I believe that conversations with AI chatbots are likely to be privileged if additional conditions are met, and that the defense claims (and the ruling doesn't really dispute) a set of conditions under which it should be.
The underlying facts of this case are that a criminal defendant used an AI chatbot (Claude) to prepare documents about defense strategy, which he then sent to his counsel. Those interactions were seized in a search of the defendant's computers (not from a subpeona of Anthropic). The argument is then about whether those documents are subject to attorney-client privilege. The ruling holds that they are not.
The defense argues that, in this context, using Claude this way was analogous to using an internet-based word processor to prepare a letter to his attorney.
The ruling not only fails to distinguish the case with Claude from the case with a word processor, it appears to hold that, if a search were to find a draft of a letter from a client to his attorney written on paper in the traditional way, then that letter would also not be privileged.
The ruling cites a non-binding case, Shih v Petal Card, which held that communications from a civil plaintiff to her lawyer could be withheld in discovery... and disagrees with its holding (not just with its applicability). So we already have a split, even if the split is not exactly on-point, which makes it much more likely to be reviewed by higher courts.
So I think my current advice, for people in litigation who would benefit greatly from using a chatbot, is that they should make the manner in which they use a chatbot look as