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AI Governance

You Asked an AI Chatbot About the Deal Before You Called a Lawyer. Can the Other Side Get the Chat?

Nadine Deeb, Esq.By · Published · 14 min read

Updated October 2026

A sheet of frosted vellum laid at an angle over a cream notebook page on a deep navy surface. Faint ruled lines show through the vellum, and a thin copper line runs along its edge.

Say you are in a disagreement with a customer, a former contractor or a co-founder. Before calling a lawyer, you open an AI chatbot, describe what happened, paste in part of the contract, and ask what to do. Months later the disagreement becomes a lawsuit, and the other side asks for every document and message about it. Does the chat count?

Courts have started to answer that question, and the 2026 decisions did not all come out the same way. This post covers four decisions: what each said and what each left open, and five questions a business can settle before a dispute starts. It covers requests aimed at you or your company, not subpoenas to AI providers. It does not tell you whether your own chats are protected. That depends on the facts and the court.

The short answer

Possibly. These decisions do not establish a single rule that resolves whether your chats are protected. In 2026 a federal court in New York held that a criminal defendant's chats with a publicly available AI platform were neither privileged nor work product.1 The defendant later sought a new trial, challenging the court's work product analysis and its treatment of protection under the federal criminal discovery rule, including whether protection was waived.2 The government's opposition states that the defendant did not renew his attorney-client privilege argument.2 No ruling on that challenge was located in the public records reviewed on October 12, 2026. A Michigan court denied a request for a self-represented plaintiff's AI-tool information as untimely and on alternative grounds, including work product protection.3 A Colorado court recognized some work product protection for a self-represented plaintiff's AI use but ordered disclosure of the platform used with confidential information; it did not decide whether particular prompts or outputs had to be produced.45 The Delaware opinion discussed here is not a privilege ruling at all.6 This post describes the reasoning in these decisions and identifies the pending challenge to the New York ruling. The subsequent-history check used available free public records through October 12, 2026; those records were incomplete, and the check does not establish that no other review or modifying order exists.

The four decisions: who used the AI tool, what the court said, and what it left open
DecisionWho used the AI tool, and in what kind of caseWhat the court saidWhat it left open
United States v. Heppner (S.D.N.Y., Feb. 17, 2026)1A represented defendant in a federal criminal case, using a publicly available AI platform during an investigation, with counsel conceding they "did not direct" the use7The exchanges were protected by neither attorney-client privilege nor work product1Said, without deciding, that the analysis might arguably differ had counsel directed the use7
Warner v. Gilbarco (E.D. Mich., Feb. 10, 2026)3A self-represented plaintiff in a civil caseThe request for the plaintiff's AI-tool information was denied as untimely and, in the alternative, as not discoverable, not relevant or proportional, and, "even if" discoverable, as work product the plaintiff is permitted to assert3A magistrate judge's order whose lead ground was timing3
Morgan v. V2X (D. Colo., Mar. 30, 2026)5A self-represented plaintiff in a civil employment-discrimination caseThe federal work product rule gives "some level of work product protection" to the plaintiff's AI use, and a public AI platform does not automatically defeat it; the plaintiff must name any AI platform used with information designated confidential54The order did not decide whether particular prompts or outputs had to be produced, but it held that the plaintiff had not shown that identifying the AI platform would reveal protected mental impressions or strategy.4
Fortis Advisors v. Krafton (Del. Ch., Mar. 16, 2026)6A CEO, in a Delaware business dispute decided after trialNot a privilege ruling. The opinion recounts the CEO's ChatGPT use in its findings of fact and cites a strategy document the chatbot prepared6The opinion does not address privilege or discovery of the chats6

Two terms, briefly

In the New York case the court looked at three elements of attorney-client privilege: whether the exchange was a communication between a client and an attorney, whether it was confidential, and whether it was made to obtain legal advice.8 Work product is a different protection. The federal rule says that "ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative."9 Work product protection is not absolute: the federal rule permits discovery of otherwise discoverable materials if the requesting party shows substantial need and cannot obtain their substantial equivalent without undue hardship.9 (That is a different idea from the "work product" a contractor delivers to a client.)

Two things that mattered: a lawyer's role and the tool's terms

Was a lawyer involved?

In the New York case, counsel conceded that they "did not direct" the defendant to use the platform. The court said that because the defendant acted on their own, what mattered was whether they intended to obtain legal advice from the platform, and it added, without deciding the point, that the analysis might arguably differ had counsel directed the use.7 Sharing the outputs with counsel afterward did not change the result: the court said non-privileged communications "are not somehow alchemically changed into privileged ones upon being shared with counsel."10

In Michigan and Colorado, the plaintiffs were representing themselves. The Colorado court said a self-represented litigant "is simultaneously the party and the advocate," and it declined to make work product protection for AI material depend on a lawyer's involvement.11

What did the tool's terms say?

The New York court relied on the platform's written privacy policy, citing a version dated February 19, 2025. As the court read it, the policy put users on notice that their inputs and outputs could be disclosed to third parties, including in connection with claims, disputes or litigation, and the court concluded the defendant could have had no reasonable expectation of confidentiality.12 That describes the court's analysis of the cited policy, not the platform's current terms. That was one of several reasons. The court also said the platform is not an attorney.8

The Michigan court described ChatGPT and other generative AI programs as "tools, not persons," and said a work product waiver has to be a waiver to an adversary or in a way likely to reach one.13 The Colorado court likewise said that AI interactions "do not automatically compromise work product protections."14

A court order about AI use in the case

Asked to amend a protective order, the Colorado court directed that it be amended to prohibit parties and authorized recipients from submitting information designated confidential to an AI platform unless the provider is contractually prohibited from storing or using inputs to train or improve its model and from disclosing inputs to third parties, except where essential to delivering the service. Any third party receiving inputs for that essential purpose must be bound by obligations no less protective than the order's requirements. The provider must also contractually allow removal or deletion of all confidential information on request, and anyone intending to use a qualifying platform must retain written documentation of those contractual protections. The court acknowledged that, "at least for now," this would bar most, if not all, mainstream low-to-no-cost AI tools for that purpose. It also ordered the plaintiff to identify any AI platform used with that information; it did not order production of prompts or outputs.4

How far these rulings reach

  • They come from trial courts. One is from a federal district judge in a criminal case, two are from federal magistrate judges ruling on discovery disputes, and one is a Delaware Court of Chancery opinion. The Colorado court said of the New York ruling that it "is of course not binding" on it.15
  • The New York case was criminal. The documents were seized under a search warrant, not requested in pretrial discovery, and the court said the federal criminal discovery rule the defendant invoked did not apply.16 The Colorado court gave the criminal setting as one reason it treated the New York ruling as distinguishable, noting that the civil rule it applied protects the work product "of a party, not merely counsel."15
  • The New York ruling concerned a publicly available platform and that platform's published privacy policy.12 What another tool's terms say is a separate question.
  • The criminal defendant and the two self-represented plaintiffs are individuals. Companies are parties in the Delaware matter, but that opinion does not decide whether AI chats are privileged or protected work product.6
  • The opening scenario is not what these rulings addressed. According to defense counsel, as the New York court quoted, the defendant's chats followed a grand jury subpoena,17 and the Michigan and Colorado plaintiffs were already in lawsuits. A chat made before anyone anticipated litigation was not the question before those courts.
  • The Delaware opinion is not a privilege ruling. It treats the CEO's ChatGPT use as part of the facts it found after trial.6
  • A court in another state or circuit may reason differently.

Five questions to settle before a dispute starts

  1. Which AI tools does your team use on contracts, customer disputes and personnel questions, and under which kind of account (personal, team or business)? Our post on a workplace AI-use policy starts with that inventory.
  2. What do those tools' terms say about retention, use of inputs to train a model, and disclosure to third parties? The New York ruling turned in part on one platform's privacy policy, and the Colorado court's clause turned on what a provider is contractually prohibited from doing.124 Our post on seven contract questions to ask before connecting an AI tool covers what to look for.
  3. Who can use an AI tool on a live dispute, and what can be entered? A lawyer can help answer that. The New York court said, without deciding, that the analysis might arguably differ if counsel had directed the use.7 That is a reason to ask a lawyer before using a tool on a live dispute, not a promise that direction would change a result.
  4. What is your process for preserving records once a dispute may be coming? A federal rule, Fed. R. Civ. P. 37(e), addresses what a federal court may do when electronically stored information that "should have been preserved in the anticipation or conduct of litigation" is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.18 State courts and arbitration forums may apply different rules. Whether a duty to preserve applies, when it begins, and whether a given chat history is covered depend on the facts. If a dispute may be coming, ask a lawyer before anything related to it, including AI chat history, is deleted.
  5. Will you be ready to tell a lawyer, early, which tools were used and, in general terms, what was entered? Some of the decisions above discussed facts of that kind, and a lawyer may need them to assess what the other side could ask for. A written AI-use policy is one common starting point; our posts on a workplace AI-use policy and on AI governance for business cover what one can include.

If a dispute has already started: ask the lawyer handling it about preservation before deleting related records, including AI chat history, or entering more information about the dispute into an AI tool.

Frequently asked questions

Can the other side in a lawsuit get my AI chats?

Possibly. These decisions do not establish a single rule that resolves whether your chats are protected. In one federal criminal case, a court held a defendant's chats with a publicly available AI platform were neither privileged nor work product.1 A Michigan court denied a request for a self-represented plaintiff's AI-tool information as untimely and on alternative grounds, including work product protection.3 A Colorado court recognized some work product protection for AI use but required disclosure of the platform used with confidential information; it did not decide whether particular prompts or outputs had to be produced.45 Whether the other side can get a particular chat depends on the court, its rules and the facts.

Are my conversations with an AI tool protected by attorney-client privilege?

Using a general-purpose AI tool does not, by itself, create an attorney-client relationship or attorney-client privilege. Whether information is confidential to the provider — and whether a disclosure could affect privilege — can depend on the tool's terms, settings, and how it is used. In one federal criminal case, the court ruled that a defendant's exchanges with a publicly available AI platform were protected by neither the attorney-client privilege nor the work product doctrine, where the defendant used the platform on their own initiative and not at counsel's direction.17 Our post on where AI stops and a lawyer starts explains the difference between privilege and confidentiality.

Does deleting AI chat history matter in a dispute?

Rules about lost or deleted electronic records can apply in a dispute. Fed. R. Civ. P. 37(e) addresses what a federal court may do when electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.18 State courts and arbitration forums may apply different rules, and whether a duty to preserve exists, and when it starts, depends on the facts. If a dispute may be coming, ask a lawyer before deleting anything related to it, including AI chat history.

Does this apply in Arizona, California or Texas?

The four decisions described here come from courts in New York, Michigan, Colorado and Delaware. Whether a court in Arizona, California or Texas would reach the same result depends on its rules and on the facts. Texas's work product rule includes "material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a party's representatives,"19 but that definition alone does not resolve whether a particular AI chat is protected.

What should I tell a lawyer about the AI tools we used?

Be ready to describe which tools were used and, in general terms, what was entered. Some of the decisions above discussed facts of that kind. Follow the lawyer's instructions about how to share any sensitive information, and do not send contracts, documents or confidential information until the firm has agreed in writing to represent you.

What this post does not cover

It covers only the four decisions above and the rules cited. Apart from quoting Texas's work product definition, it does not analyze state privilege or work product law or determine what Arizona, California or Texas law requires in any particular case. It does not cover criminal investigations beyond the one case described, arbitration, subpoenas to AI providers, regulators, insurance, or whether any specific chat is privileged, protected work product or discoverable. It is not a substitute for advice about a dispute that has already started or a discovery request you have received; the lawyer handling that matter is the person to ask.

How we can help

Accord & Shield Legal drafts and reviews AI-use policies and AI-related contract terms for technology companies in Arizona, California and Texas.

This article is general information, not legal advice. Reading it does not create an attorney-client relationship. Whether a particular chat or document is privileged, protected or discoverable depends on the facts and the court; consult an attorney about your situation.

Citations

  1. United States v. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 1 (S.D.N.Y. Feb. 17, 2026) (memorandum) (filing as archived on CourtListener RECAP), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎1↩︎2↩︎3↩︎4↩︎5
  2. Heppner, No. 25 Cr. 503 (JSR), ECF No. 70 (S.D.N.Y. June 22, 2026) (defendant's motion for a judgment of acquittal or a new trial), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.70.0.pdf; ECF No. 71 at 24-29 (S.D.N.Y. June 22, 2026) (memorandum in support), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.71.0.pdf; ECF No. 74 at 30 n.4 (S.D.N.Y. July 24, 2026) (government's opposition), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.74.0.pdf; ECF No. 76 at 6-7 (S.D.N.Y. Aug. 7, 2026) (defendant's reply), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.76.0.pdf (filings as archived on CourtListener RECAP) ↩︎1↩︎2
  3. Warner v. Gilbarco, Inc., No. 2:24-cv-12333, ECF No. 94 at 9-12 (E.D. Mich. Feb. 10, 2026) (order of the magistrate judge) (filing as archived on CourtListener RECAP), https://storage.courtlistener.com/recap/gov.uscourts.mied.379552/gov.uscourts.mied.379552.94.0.pdf ↩︎1↩︎2↩︎3↩︎4↩︎5
  4. Morgan, No. 1:25-cv-01991-SKC-MDB, ECF No. 65 at 11-12, 14-16 (D. Colo. Mar. 30, 2026), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_25-cv-01991/pdf/USCOURTS-cod-1_25-cv-01991-0.pdf ↩︎1↩︎2↩︎3↩︎4↩︎5↩︎6
  5. Morgan v. V2X, Inc., No. 1:25-cv-01991-SKC-MDB, ECF No. 65 at 7-11 (D. Colo. Mar. 30, 2026) (order of the magistrate judge), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_25-cv-01991/pdf/USCOURTS-cod-1_25-cv-01991-0.pdf ↩︎1↩︎2↩︎3↩︎4
  6. Fortis Advisors LLC v. Krafton, Inc., C.A. No. 2025-0805-LWW, slip op. at 1, 32-36, 63 n.336 (Del. Ch. Mar. 16, 2026), https://courts.delaware.gov/Opinions/Download.aspx?id=392880 ↩︎1↩︎2↩︎3↩︎4↩︎5↩︎6
  7. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 4, 7 (S.D.N.Y. Feb. 17, 2026) (filing as archived on CourtListener RECAP), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎1↩︎2↩︎3↩︎4↩︎5
  8. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 5-7 (S.D.N.Y. Feb. 17, 2026), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎1↩︎2
  9. Fed. R. Civ. P. 26(b)(3)(A), https://www.uscourts.gov/sites/default/files/document/federal-rules-of-civil-procedure.pdf (Dec. 1, 2025 ed.) ↩︎1↩︎2
  10. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 8 (S.D.N.Y. Feb. 17, 2026), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎
  11. Morgan, No. 1:25-cv-01991-SKC-MDB, ECF No. 65 at 7-8 (D. Colo. Mar. 30, 2026), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_25-cv-01991/pdf/USCOURTS-cod-1_25-cv-01991-0.pdf ↩︎
  12. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 6-7 (S.D.N.Y. Feb. 17, 2026), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎1↩︎2↩︎3
  13. Warner, No. 2:24-cv-12333, ECF No. 94 at 11-12 (E.D. Mich. Feb. 10, 2026), https://storage.courtlistener.com/recap/gov.uscourts.mied.379552/gov.uscourts.mied.379552.94.0.pdf ↩︎
  14. Morgan, No. 1:25-cv-01991-SKC-MDB, ECF No. 65 at 10 (D. Colo. Mar. 30, 2026), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_25-cv-01991/pdf/USCOURTS-cod-1_25-cv-01991-0.pdf ↩︎
  15. Morgan, No. 1:25-cv-01991-SKC-MDB, ECF No. 65 at 8 (D. Colo. Mar. 30, 2026), https://www.govinfo.gov/content/pkg/USCOURTS-cod-1_25-cv-01991/pdf/USCOURTS-cod-1_25-cv-01991-0.pdf ↩︎1↩︎2
  16. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 3, 10 (S.D.N.Y. Feb. 17, 2026), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎
  17. Heppner, No. 25 Cr. 503 (JSR), ECF No. 27 at 3 (S.D.N.Y. Feb. 17, 2026) (quoting the Feb. 10, 2026 transcript), https://storage.courtlistener.com/recap/gov.uscourts.nysd.652138/gov.uscourts.nysd.652138.27.0.pdf ↩︎
  18. Fed. R. Civ. P. 37(e), https://www.uscourts.gov/sites/default/files/document/federal-rules-of-civil-procedure.pdf (Dec. 1, 2025 ed.) ↩︎1↩︎2
  19. Tex. R. Civ. P. 192.5(a)(1), https://www.txcourts.gov/media/1463426/texas-rules-of-civil-procedure.pdf (as published at this address on October 12, 2026) ↩︎

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