From U.S. v. Heppner, handed down today by Judge Jed Rakoff (S.D.N.Y.):
At a pretrial conference in this matter held on February 10, 2026, the Court … granted from the bench the Government's motion for a ruling that certain written exchanges that defendant Benjamin Heppner had with a generative artificial intelligence ("AI") platform were not protected from Government inspection by either the attorney-client privilege or the work product doctrine. This Memorandum sets forth the reasons for the Court's ruling….
[T]he indictment charges that Heppner defrauded [GWG Holdings'] investors out of more than $150 million by making false representations about, and causing GWG to enter into undisclosed self-serving transactions concerning, two privately held companies that Heppner controlled, Beneficient Company Group, L.P. and Highland Consolidated L.P.
In connection with Heppner's arrest on November 4, 2025, agents with the Federal Bureau of Investigation executed a search warrant at Heppner's home and seized numerous documents and electronic devices. Heppner's counsel later represented to the Government that among the seized materials were approximately thirty-one documents that memorialize communications that Heppner had with the generative AI platform "Claude," which is operated by the private company Anthropic.
According to Heppner's counsel, the documents represent communications between Heppner and Claude that took place "in 2025, after Mr. Heppner had received a grand jury subpoena [and] after it was clear with discussions with the government that Mr. Heppner was the target of this investigation." Without any suggestion from counsel that he do so, Heppner "prepared reports that outlined defense strategy, that outlined what he might argue with respect to the facts and the law that we anticipated that the government might be charging." Thus, counsel asserted, Heppner "was preparing these reports in anticipation of a potential indictment."
In exchanges with the Government, Heppner, through his counsel, asserted privilege over these documents (the "AI Documents"), arguing that (1) Heppner had inputted into Claude, among other things, information that Heppner had learned from counsel; (2) Heppner had created the AI Documents for the purpose of speaking with counsel to obtain legal advice; and (3) Heppner had subsequently shared the contents of the AI Documents with counsel. Heppner's counsel conceded, however, that counsel "did not direct [Heppner] to run Claude searches." …
