AI is everywhere. An incredible resource for some, but for others, maybe a bit annoying that everyone seems to be talking about it.

Lawyers are no exception as we adapt to a new legal landscape. In a recent decision out of the Southern District of New York, the court held that a defendant’s AI searches were not protected from disclosure pursuant to the attorney-client privilege and did not constitute attorney work-product. This is likely the first of many decisions that will help to define AI’s place in legal proceedings.

In US v. Heppner, the court considered whether a criminal defendant’s AI searches regarding a pending criminal fraud investigation could be withheld from discovery. The court concluded that the AI documents did not constitute a protected communication between attorney and client, holding that “all recognized privileges require, among other things, a trusting human relationship, such as, in the attorney-client context, a relationship with a licensed professional who owes fiduciary duties and is subject to discipline.”

Likewise, the court determined that the AI search was not conducted for the purpose of obtaining legal advice which, of course, can only be obtained from a licensed attorney. Although the defendant eventually provided the search results to his attorney, the court concluded that the attorney-client privilege does not apply retroactively.

Courts are already considering how AI impacts copyright, First Amendment, and privacy law, amongst other areas. This decision is reportedly the first to consider the intersection between AI and confidentiality. As the body of law grows, attorneys should be mindful to advise clients that AI use may not be confidential and, much like a Google search, could be discoverable.