By Leslie King O’Neal
Does Using Generative AI Tools Waive Attorney-Client or Work Product Privilege?
Two recent cases came to different conclusions on whether a user’s generative AI interactions were protected by attorney-client or work product privilege and were subject to discovery. In U.S. v. Heppner[i] a New York district judge held a criminal defendant’s interactions with the AI tool Claude were discoverable and had no attorney-client or work product privilege protection. A week before the Heppner decision, a magistrate judge in Michigan denied a motion to compel production of a pro se plaintiff’s use of AI tools, finding this information non-discoverable and upholding attorney-client and work product protections.[ii] These cases have spawned a flurry of articles, blog posts and commentary about confidentiality and privilege for AI use.[iii]
With No Definitive Decision—the Law is in Flux
Heppner and Warner are trial court cases, so their opinions aren’t binding precedent. Until there is a definitive decision from SCOTUS or legislative or rule changes specifying how privilege and confidentiality apply to generative AI use, lawyers are likely to advise clients to be cautious in using generative AI tools.[iv] Whether clients will follow this advice is debatable. “What is clear is this: there is no established body of law creating a safe harbor for AI-based legal research conducted by non-lawyers. And that uncertainty is dangerous.”[v]
Can Mediation Confidentiality & Privilege Cover Client Gen AI Use?
Understanding mediation confidentiality was complicated before AI entered the picture. While it’s commonly thought that everything said or presented in mediation is privileged and confidential, this is not completely accurate. Although confidentiality is a key component of mediation, the extent of such confidentiality and mediation privilege varies widely from state to state and within the federal courts. Determining which law applies, when it applies and to whom and what information is confidential or privileged is a can of worms.
Mediation Confidentiality and Privilege Coverage is a Can of Worms
Understanding mediation confidentiality and privilege laws requires state-specific analysis. While California and Florida have broad mediation confidentiality laws,[vi] New York has no state-wide mediation confidentiality statute. As noted in a recent report, “New York relies on local rules and optional confidentiality agreements.”[vii] Under North Carolina’s mediation rules, only the mediator has a duty of confidentiality. Attorneys and parties do not.[viii] The Uniform Mediation Act applies in only 12 states and the District of Columbia.[ix] Some states limit confidentiality to “communications made in the presence of the mediator”[x] or to court-annexed mediations with mediators having specific credentials.[xi]
Confidentiality in mediations with parties, counsel and mediators in different states is even more complex, raising conflict of law issues.
Don’t Depend on Confidentiality Agreements
Mediation confidentiality agreements stating that a particular state’s law applies are helpful, but courts don’t always enforce them.[xii] Also, many mediation privilege and confidentiality laws have exceptions.[xiii] Many statutes state that information otherwise admissible or discoverable is not protected by its use or disclosure in mediation.[xiv] Merely copying a lawyer on emails doesn’t automatically make the communication privileged.[xv]
Gen AI Tools Add New Worms to the Confidentiality Can
New AI tools used for pre-mediation case evaluation create new layers of complexity to the mediation confidentiality question. GenAI use is exploding in business, in law and in ADR. See prior posts: AI Tools in ADR Roundup https://theconstructionadrtoolbox.com/2026/04/ai-tools-in-adr-roundup/; Mover Over, AI Arbitrator! AAA Introduces “AI Resolution Simulator” https://theconstructionadrtoolbox.com/2026/03/aaa-introduces-resolution-simulator-ai-tool/
Does Mediation Privilege Cover Client’s GenAI Interactions?
If a client’s interactions with GenAI outside an attorney-client relationship aren’t privileged, how does that affect a client’s use of a GenAI tool for a case evaluation? If the client inputs claim data into the AI evaluation tool and requests a decision on the claim’s outcome (without counsel’s direction or knowledge), is that outcome privileged from discovery? What if the client seeks the claim analysis in preparation for mediation (without counsel’s direction)? Does that change the analysis? Some states’ laws broadly define “mediation communication” to include materials created for mediation,[xvi] which may expand privilege coverage for this type of GenAI use. If getting a GenAI case analysis is a company’s routine business practice for all claims over a certain dollar value, could that make the analysis discoverable as a “business record?”[xvii]
Takeaways
- Until the law about privilege and GenAI use becomes more certain, clients should be cautious in using these tools for legal analysis without attorney direction.
- Don’t assume that all materials prepared for or used in mediation are automatically protected under mediation privilege.
- Check the mediation statute or rules applicable in the jurisdiction where a mediation occurs.
- While not ironclad, having a mediation confidentiality agreement is a good practice.
[i] 25 Cr. 503 (JSR) (February 17, 2026) https://www.courtlistener.com/docket/71872024/united-states-v-heppner/
[ii] Warner v. Gilbarco, Inc. No. 2:2024cv12333 – Document 94 (E.D. Mich. 2026).https://law.justia.com/cases/federal/district-courts/michigan/miedce/2:2024cv12333/379552/94/
[iii] E.g. Bridget Mary McCormack & Shlomo Klapper, The Machine Isn’t the Interlocutor: Why United States v. Heppner Gets Privilege Wrong, 27 Sedona Conf. J. (upcoming publication). https://www.thesedonaconference.org/sites/default/files/publications/The_Machine_Isnt_the_Interlocutor_26.pdf; Tyler Coe & Scott Murphy, Landmark AI Rulings Impacting All, (March 3, 2026) Dentons Dentons – Landmark AI Rulings Impacting All; Ira P. Robbins, Against an AI Privilege, Harvard J. of Law & Tech.(November 7, 2025) Against an AI Privilege – Harvard Journal of Law & Technology
[iv] See Jonathan C. Shoemaker, Lee/Shoemaker PLLC, When AI Searches Become Exhibit A: Discovery Risk for Architects and Engineers, https://www.linkedin.com/pulse/when-ai-legal-searches-become-exhibit-discovery-risk-xxqie/; Jordyn C. Tye, Comment, Exploring the Intersections of Privacy and Generative AI: A Dive Into Attorney-Client Privilege and ChatGPT, 64 Jurimetrics J. 309-40 (2024).
Josh Kubicki, AI First Drafts: What Your Clients Aren’t Telling You (and Why it Matters), (September 2, 2025). https://thebrainyacts.beehiiv.com/; T. Lawler, E. Gary, B. McCarthy, Generative AI and the challenge of preserving privilege in discovery, Commentary (Attorney Analysis from Westlaw Today, a part of Thomson Reuters, September 18, 2025). https://www.reuters.com; B. Bement, C. Deterding, S. Turner, Should AI prompts and outputs be awarded special privilege under the law? www.mondq.com (October 29, 2025). https://www.mondaq.com
[v] Jonathan C. Shoemaker, Lee/Shoemaker PLLC, When AI Searches Become Exhibit A: Discovery Risk for Architects and Engineers, https://www.linkedin.com/pulse/when-ai-legal-searches-become-exhibit-discovery-risk-xxqie/
[vi] §44.405, Fla. Stat. (2025), “The Mediation Confidentiality and Privilege Act;” https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0044/Sections/0044.405.html
CA Ev. Code Division 9, Chapter 2 §§1115 – 1129; https://codes.findlaw.com/ca/evidence-code/evid-sect-1119/
[vii] Sarah Boxer, Lessons on Mediation Confidentiality from New York State (CPR Speaks 7/16/24) https://www.cpradr.org/news/lessons-on-mediation-confidentiality-from-new-york-state, citing, Mediation Confidentiality in New York State, (report to the New York City Bar 6/24/24) https://www.nycbar.org/reports/mediation-confidentiality-in-new-york-state/
[viii] Advisory Opinion No. 22, North Carolina Dispute Resolution Commission (September 30, 2024) https://www.nccourts.gov/assets/inline-files/22.2012%20WCAG%20EKC.pdf?VersionId=wIneQoq3d_od0QBLi8A9tab8S582_54I
[ix] Connecticut, Georgia, Hawaii, Idaho, Illinois, Iowa, New Jersey, Ohio, South Dakota, Utah, Vermont, Washington and the District of Columbia have adopted the Uniform Mediation Act when this chapter was written.
[x] MA General Laws, Part III Title II, Chap. 233, Sec. 23C, MA Guide to Evidence, Section 514 (c) “Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant . . . shall be a confidential communication . . . .”
[xi] MA General Laws, Part III Title II, Chap. 233, Sec. 23C, MA Guide to Evidence, Section 514.
[xii] Larson v. Larson, 687 F. Appx. 695 (10th Cir. 2017) https://law.justia.com/cases/federal/appellate-courts/ca10/16-8065/16-8065-2017-04-27.html (Wyoming court declines to apply Colorado law and confidentiality agreement for Colorado mediation).
[xiii] E.g. the Florida Mediation Confidentiality Act( §44.405, Fla. Stat. (2025)) provides there is no confidentiality for: (1) the signed mediation agreement; (2) reporting child abuse or elder abuse as required under Florida law; (3) to report or to prove or disprove professional malpractice occurring during mediation; (4) to establish or refute legal grounds for voiding or reforming a settlement agreement reached during mediation; (5) to report, prove or disprove professional misconduct occurring e mediation. Also, Section 6 of the Uniform Mediation Act lists seven privilege exceptions.
[xiv] §44.405(5), Fla. Stat. (2025).
[xv] David M. Greenwald, Michele L. Slachetka, Protecting Confidential Legal Information, I.A.1, citing E.E.O.C. v. BDO USA, L.L.P., 876 F.3d 690, 696 (5th Cir. 2017) (“[D]ocuments sent from one corporate officer to another” are not privileged “merely because a copy is also sent to counsel[.]”).
[xvi] E.g. the Uniform Mediation Act defines “mediation communication” as: “a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.” UMA §2(2).
[xvii] In Re: Learjet, 59 SW 3d 842 (allowing discovery of witness videotapes used in mediation overruling attorney-client privilege and citing Tex. Civ. Prac. & Rem. Code Ann. § 154.073(c) (Vernon Supp.2001) “An oral communication or written material used in or made a part of an alternative dispute resolution procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure.”)
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