“No Privilege in the Machine: A Case Study in AI-Assisted Defense”
AI DOCUMENTS ARE PRIVILEGED DOCUMENTS? ARE AI‑GENERATED LEGAL DOCUMENTS PRIVILEGED? A COMPARATIVE LEGAL PERSPECTIVE To understand the nuances of the issue under discussion we must know the provisions of the Indian laws. The two main laws applicable during evidence and cross examination oof a witness are the Bharatiya Sakshya Adhiniyam (BSA), 2023, and Code of Civil Procedure 1908. Prior to Bharatiya Sakshya Adhiniyam (BSA), 2023, it was The Evidence Act 1872. Professional Communications (Section 126-128, Evidence Act): Attorneys, pleaders, and their employees cannot disclose any communication made by a client, or documents shared, in the course of professional employment without the client’s express consent. Confidentiality Requirement: Privilege only applies to communications made to seek legal advice; it does not protect advice sought for illegal purposes. Client Protection (Section 129, Evidence Act): Clients cannot be compelled to disclose confidential communications with their legal advisors. Spousal Privilege (Section 122, Evidence Act): Communications between husband and wife during marriage are protected, with exceptions like suits between them. Official Communications (Sections 123-124, Evidence Act): Public officers cannot be compelled to disclose communications made in official confidence if it harms public interest. CPC Application: Under the Code of Civil Procedure, if a party is asked to produce a document that is privileged under the Evidence Act, they can object to its production. If a document loses its confidentiality, the privilege is lost. The Query: So, a question arises when a document is drafted by an Artificial Intelligence Application, whether such document or a draft is a privileged document and exempted from cross examination? Now issue arose before a Court in USA. United States v. Heppner in which said that when documents prepared by an AI application same is not a privileged document? If we talk of India, there is no law. However, a warning is issued by the Supreme Court of India not to rely on AI. It was an incident where a lawyer cited Judgements during his arguments, were never passed by any court of law in India. Factual Background On November 4, 2025, Bradley Heppner was arrested on the charges of securities and wire fraud. Pursuant to a search warrant, federal agents searched his residence and seized electronic devices. A forensic review revealed approximately thirty-one documents generated through Heppner’s interactions with “Claude,” a generative AI system operated by an application called Anthropic. The documents contained AI-generated analyses addressing potential defences, legal theories, and litigation strategy related to Heppner’s criminal case. After receiving a grand jury subpoena and retaining counsel, Heppner continued to use Claude independently to analyse the charges, evaluate defences, and draft strategy memoranda. He saved the AI-generated materials on his personal devices and later shared them with his attorneys. During discovery disputes, defence counsel conceded that they neither directed nor supervised Heppner’s use of the AI system and had no role in creating the documents. The government moved to compel production, arguing that the materials were not privileged because they were created through communications with a third-party AI platform without attorney involvement. Judge Jed Rakoff of the U.S. District Court for the Southern District of New York granted the motion, holding […]
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LEAKING A VIDEO OF AN OFFICER COUNTING BALLOT PAPERS DURING THE VOTING PROCESS OF CHANDIGARH MUNICIPALITY TO SOCIAL MEDIA IS IN BREACH OF DATA PRIVACY?
Data privacy is a law and it’s in force. It came into force on 11th August 2023. Recently an election process was held for electing a Mayor in Chandigarh Municipality. The issue started with Presiding Officer Anil Mansinh looking at surveillance camera and mainly ruling Aam Adami Party lost Mayoral post. Hence an issue is raised that returning officer defaced the ballot papers. The AAP approached the Supreme Court and upon seeing the video a judgment is drawn that returning officer Anil Mansinh tempered the ballot paper. There are two issues: The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy. How we will discuss here. Can court become judgmental by declaring returning officer guilty without scrutinizing the records? Is court pre-decisive and judgmental in this case? DISCUSSION AND ANALYSIS: [A] The video presented in court is available on social media platform and all are interpreting the way they want. This is breach of #dataprivacy. While answering point No.i let us go back to recent history of constitution bench judgment in which current CJI was a part of it. Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2017), also known as the Right to Privacy verdict, is a landmark decision of the Supreme Court of India, held that, the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India. A nine-judge bench of J. S. Khehar, J. Chelameswar, S. A. Bobde, R. K. Agrawal, R. F. Nariman, A. M. Sapre, D. Y. Chandrachud, S. K. Kaul, and S. A. Nazeer unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” It explicitly overruled previous judgements of the Supreme Court in Kharak Singh vs. State of UP and M.P. Sharma vs. Union of India, which held that there is no fundamental right to privacy under the Indian Constitution. This judgment settled this position of law and clarified that the Right to Privacy could be infringed upon only when there was a compelling state interest in doing so. This position was the same as with the other fundamental rights . Supreme Court ruled that Right to Privacy is “intrinsic to life and personal liberty” and is inherently protected under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. DATA PROTECTION: Central Government passed an Act to provide for the processing of digital personal data in a manner that recognises both the right of individuals to protect their personal data and the need to process such personal data for lawful purposes and for matters connected therewith or incidental thereto. The definition of the term data under this Act is as under : (h) “data” means a representation of information, facts, concepts, opinions or instructions in a manner suitable for communication, interpretation or processing by human beings or by […]
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