“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 that the documents were protected by neither attorney–client privilege nor the work product doctrine. The court found that the involvement of a third-party AI system and the absence of attorney direction defeated any claim of confidentiality, and ordered the documents produced.

Conclusion:

The communication between an Attorney/ Lawyer/Counsel/Solicitor is privileged communication. But when its generated through and Artificial Intelligence Application (AIA) it’s no longer privileged because AI is a third party who is involved in drafting a document. An AI application definition

does not mean “human” in the literal or biological sense. Instead, Artificial Intelligence (AI) refers to computer systems, software, or machines designed to simulate, mimic, or replicate human intelligence.

 So be careful. If you use AI to prepare client’s documents than your client may lose right to be a privileged document and it will be cross examined by the other side.

 26^th February 2026

 Shruti Desai