More criticism about the decision on discovery of AI research by client

 In my most recent post I wrote about a recent decision holding that the result of a client's use of an AI platform was not protected from discovery.  See here.  I argued that the opinion makes perfect sense in terms of the applicable law and that, unlike other commentators, I did not think it was "groundbreaking."  But I also pointed out (and provided a link) to some thoughtful criticism of it.

I am writing today to give you another good short comment on the opinion which takes the position that  although the opinion is correct given the state of the law, it is bad decision, and an opportunity lost to be "groundbreaking."  As the author puts it "The ruling may be defensible under existing doctrine.  But it is a disaster for the 21st-century justice system" and that the ruling is "tone-deaf [...] to the high cost of legal services and to AI’s potential to reduce those costs."

The author concludes "Judge Rakoff’s ruling mechanically applied old rules to a new world.  Today, millions of Americans are turning to interactive AI to survive a legal system that has become too expensive and too complex for ordinary people to navigate. As a lawyer, I want my clients and my potential clients to keep using AI tools. The law should encourage them to do so, not punish them for it."

The article is short and worth reading.  It is called "AI Research Can Be Used Against Clients In Court. It Shouldn’t Be" and you can read it at Above the Law, here.

Client's chat with a robot is not privileged -- UPDATED

February 22, 2026

Several sources that I follow reported this week on a case in New York that held that a client's chat with a public AI platform was not protected by attorney-client privilege.  See United States v. Heppner, available here.

For some reason, this surprised some people and I am not sure why.  

Let's be clear about what happened in this case.  Using some information obtained from a lawyer, a client - on their own - used an AI platform to get more information.  The information at issue is the one obtained from the AI in reply to the client's prompts and the court held - not surprisingly (at least to me) - that it was not privileged.

Why am I not surprised?  Because privilege information is defined as information shared between a lawyer and a client for purposes of obtaining legal representation.  The only way that one could argue that the information at issue in this case should be considered privileged is if we consider the AI platform (whether ChatGPT or one of its many equivalents) to be a lawyer.  Is anyone in their right mind going to argue that?  I don't think so.

But what about "work product"?, you might ask.  Well, what about it?  Work product refers to materials created by the lawyer as part of the representation of a client in litigation.  The "product" created in this case was created by the client, not by the lawyer and not at the request, direction or supervision of the lawyer. 

I do not know why anyone would have thought that arguing that the information generated by a client doing their own research would be considered privileged under these circumstances.  But just in case there was any doubt, there you have it.  Now there is precedent explaining what that argument will not be convincing.

What should lawyers learn from this case?  That you should tell your client that if they want legal advice, they should go to a lawyer, not to an AI platform because that "advice" will not be protected from discovery -- aside from the fact that the AI's advice may be bad or inaccurate - but that's another story.

For more on the story you can check out Ethical Grounds and The Law for Lawyers Today, among many others.

For a good article on general advice regarding the fact that clients are using AI to ask legal questions check out this article in Above the Law.

Having said all that, a more interesting question to ask is whether information that a lawyer generates when using AI should be considered to be privileged.  One would think the answer is yes, since the result of the query could be considered part of the lawyer's research and, at least in litigation, therefore, work product.  But the court in Heppner reasoned that the fact that the AI platform in question did not keep the information it collected private meant that sharing information with it was not done with a reasonable expectation of privacy.  If that is the case, then no use of AI would be protected.

For a good critique of this part of the opinion, check out the post by Jonah Perlin cited in the article in  Ethical Grounds linked above.

UPDATE (February 25):  Joe Patrice, of Above the Law, has published a good critique of the case here.

UPDATE #2: (March 1): For more commentary on the case (arguing it is a bad decision) go here.

Judge dismisses Rudy Giuliani’s bankruptcy proceeding

July 12, 2024

Bankruptcy Judge Sean Lane has dismissed Rudy Giuliani’s Chapter 11 bankruptcy, removing a shield that for six months froze two Georgia election workers’ efforts to collect their $148 million defamation judgment. In the ruling (available here), the judge commented on Giuliani’s “continued failure” to provide financial transparency. 

Giuliani's case involves the interests of the two Georgia election workers who won a defamation claim against him, in addition to those of Dominion Voting Systems, and Giuliani’s former assistant Noelle Dunphy. The latter two have pending lawsuits, while the Georgia workers have an enforceable judgment for many times the value of Giuliani’s assets. 

Because they’re not all going to get the money they seek from Giuliani, the ones with perfected claims would like to attach all his assets now.  Dominion and Dunphy have argued that the case should remain as a Chapter 11 bankruptcy claim, while the Freeman plaintiffs urged the court to dismiss the case entirely.

And that is exactly what the judge did, leaving [for the moment] nothing for Dominion, whose defamation suit is still in discovery, or for Dunphy, who is suing Giuliani in state court for assault and various labor violations. Of course those parties would prefer that the court retain jurisdiction and adjudicate their claims while a Chapter 11 trustee babysits the debtor to ensure he doesn’t loot the estate.  I imagine appeals will follow.

For more on the story you can check:

The Hill 

Above the Law

MSNBC

Law & Crime (‘Continued failure’: Rudy Giuliani has bankruptcy case dismissed by angry judge who points out numerous ‘troubling’ discovery violations)

Courthouse News Service (Judge chides Rudy Giuliani for ‘troubling’ conduct, tosses NY bankruptcy case)

The Guardian

Above the Law (Rudy Giuliani Falls Ass Backwards Out Of Bankruptcy)

Jurist

On the duty to inform another party of the fact that the other party inadvertently disclosed documents... and more

 Suppose Lawyer A is in litigation and, in response to a request for documents, opposing counsel (Lawyer B) sends a link to a file stored in a service like Dropbox.*  When Lawyer A opens the file using the link, he or she discovers the link provides access to B's client's documents which were not expected to be disclosed and are likely to be considered confidential.

This is what happened in a recent case in New York called Pursuit Credit Special Opportunity Fund, L.P. v. Krunchcash, LLC (May 30, 2024), in which the lower court determined that Lawyer A was required to notify Lawyer B that the link contained folders that "counsel knew or should have known were confidential or privileged."  The court imposed a sanction on defendants and their counsel for accessing and downloading the folders from Dropbox.

The order was affirmed in an opinion (available here) that is about seven sentences long.  It cites, among other things, NY's rule 4.4(b) which is based on the equivalent Model Rule which states that "[a] lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender."  

So, going back to our initial question:  in those circumstances, Lawyer A had a duty to inform Lawyer B that Lawyer B had inadvertently disclosed documents.  That much is clear.  But nothing else is, and the incident raises a number of interesting question not addressed by the court.

First of all, why does the court refer to the documents as privileged?  The court refers to the documents in question as "corporate files."  What were these documents?  If they were corporate records that the client gave the lawyer to store, there is no reason to believe that they are protected by the attorney-client privilege, so calling them so would be a mistake.  But I am willing to proceed on the assumption that even if not privileged, they could be considered confidential.

Next, in addition to the duty to inform the other side of their mistake, did Lawyer A have a duty to delete the link immediately or could Lawyer A have looked at the documents to confirm they were privileged before doing anything else?  The rule does not address that, and the comment to the Model Rule explicitly states that the rule does attempt to decide whether the lawyer who receives the information has a duty to return (or in this case delete) the document (or link to it). 

The court's opinion suggests that the lawyer had a duty "to sequester the inadvertently disclosed files" (which I guess means the lawyer could keep them but not look at them) but the court does not cite anything in support of this suggestion.

And then there are the questions related to the conduct of the lawyer who sent the link to begin with, which the court does not discuss.  It can be argued that this lawyer violated their duty of confidentiality and their duty of competence by disclosing protected information by mistake.  Could the lawyer be subject to discipline for this?  In theory, Yes; absolutely.  But. as you know, the reality is that an isolated act of negligence will not likely lead to discipline.  

Could the lawyer be liable in tort for negligence?  Again, in theory yes since the conduct is clearly a breach of duty, but whether there is an actionable cause of action depends on whether the conduct caused an injury and it does not sound that that was the case in this instance.  Lucky for the lawyer!

 I am willing to bet that the ABA has issued an ethics opinion exploring some of the issues that arise out of a situation like this and the application of a rule like Model Rule 4.4(b) but I have not searched for it.

________________

* If you don't know what Dropbox is, this post is for you because you may be in violation of the rule regarding competence since competence requires you to at least "keep abreast of . . . the benefits and risks associated with relevant technology" and Dropbox is pretty old technology.

Is it ethical to advise clients to delete content from social media?

 It depends.  The San Diego County Bar Association explains here.

Lawyer fined nearly $20,000 for obnoxious conduct in violation of rules of procedure during deposition

 I often complain that judges do not do enough to discourage misconduct during discovery, so today I am happy to report that at least one judge is doing her part.  

As reported in the ABA Journal (here), last month federal judge U.S. District Judge Stephanie L. Haines of the Western District of Pennsylvania sanctioned a lawyer imposed a sanction of nearly $20,000 for his conduct during four depositions last year.  The only question I have is why did it take a year for the judge to impose the sanctions, but I guess I'll let that one go for now.  According to the story, the lawyer was fired from his firm soon after the fourth deposition.

You can read the opinion here.  

New ABA Formal Opinion on witness preparation -- UPDATED

About two weeks ago, the ABA Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (No. 508) on the ethics of witness preparation.  Its abstract reads: 

A lawyer’s role in preparing a witness to testify and providing testimonial guidance is not only an accepted professional function; it is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony. Under the Model Rules of Professional Conduct governing the client-lawyer relationship and a lawyer’s duties as an advisor, the failure adequately to prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b). The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously “coach” witnesses in new and ethically problematic ways.

You can read the full opinion here. You can read more about it over at Ethical Grounds.

UPDATE 9-17-23:   Lawyer Ethics Alert Blog has a comment on the Opinion here.

UPDATE 10-5-23:  The Law for Lawyers Today has a comment here.

UPDATE 11-4-23:  The Louisiana Legal Ethics Blog has a comment here.

Rudy, that's not how anything works, Part III: Giuliani found liable for defamation by default

A few days ago, I posted a story questioning why Rudy Giuliani would concede the main elements of a cause of action for defamation he had been fighting (based on his comments about two election workers).  Giuliani -- or perhaps, more accurately, the lawyer representing him -- apparently thought that it was a good tactic in order to avoid complying with a discovery request, but that made no sense.  My original comment explaining why the tactic was likely to fail is here.  

As I predicted, the tactic not only failed, it backfired spectacularly.  See here.  First it resulted in an order to explain his argument and eventually in a finding of liability by default.

Maybe Giuliani and his lawyer did not realize that what they did amounted to conceding the main elements of the cause of action and for that reason, and because of the fact that they did not comply with discovery, the court has found Giuliani liable by default.   

Now that default judgment has been imposed, the case will move to trial on the question of the value of the injury, ie, on the damages issue alone.  And if you have been paying attention to the story in the news and have watched some of the testimony by the plaintiffs, you know it is fair to say that the value will likely be high.  Plus, Giuliani will have to pay attorneys' fees to the plaintiff's lawyers and more in sanctions.

Giuliani is in real trouble.  He is reportedly in dire financial trouble and a huge verdict against him in this case will cause him a lot of distress.  He has been trying to find funding for his legal bills, which include pending disbarment proceedings in New York and Washington DC, the indictment in Georgia, and at least one other defamation case.  Reportedly, Trump is not contributing to his defense fund and Giuliani has put up his NY condo up for sale and is hosting events in attempts to raise funds.  (Trump apparently agreed to appear in one of them, although I won't be surprised if he makes the appearance all about himself and ends up trying to get contributions for his legal defense fund rather than for Giuliani, but that's another story for another day.)

You can read the court's opinion here.  You can find reports and commentary on the default judgment against Giuliani in the following:

Courthouse News Service

The Legal Profession Blog

NPR

The Guardian

Above the Law

NPR audio

Jurist

MSNBC

Rudy, I told you that's not how anything works! -- UPDATED

 Last Friday I posted a story about how Rudy Giuliani attempted to prevent having to comply with discovery in a defamation case by conceding all the elements of the cause of action against him and, at the same time, trying to raise defenses in the case.  And, after explaining the situation I concluded "Unfortunately for Giuliani, that’s not how anything works."  My original story is here.

I fully expected Giuliani's tactic to be rejected and that is just what happened.  Reportedly, the judge overseeing the case has given Giuliani the following options.  He can:

1.  submit a new stipulation conceding liability to the claims “all factual allegations ... as to his liability for plaintiffs’ defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs’ claim for punitive damages” and that a default judgment as to his liability is appropriate, or

2.  explain why he is declining to submit such a stipulation by clarifying “what precisely his original stipulation conceded regarding the plaintiffs’ factual allegations and legal claims.”

Should Giuliani fail to choose one or two, the judge will convene a hearing (on August 15) to determine how, if at all, he has complied with her prior order to search and produce all materials responsive to the plaintiffs' discovery requests. 

Stay tuned!

MSNBC has coverage here.  TechDirt has a comment here.

UPDATE: 8-19-23:  Courthouse News Service reports (here) that "The judge in the Smartmatic suit ordered Giuliani to complete discovery production in two weeks, by August 30, or risk an order to a judgment of the company's legal fees arising from the particular motion for an order to show cause."

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.

Why did Rudy Giuliani concede that he made false and defamatory statements about the plaintiffs in a defamation case, thus conceding the elements of the claim?! -- UPDATED

 Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.”  According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.

Unfortunately for Giuliani, that’s not how anything works.

First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense.  You can’t have it both ways.  In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se.  That means he conceded all the elements of the cause of action. Period, end of story.  All Giuliani has left after that is arguing affirmative defenses.  And which ones are there?  I don’t see any.  

He apparently claims that either the statements were statements of opinion or that they were constitutionally protected.  Both arguments are wrong.  

Once he admits that the statements he made were “false” he has admitted they were not opinions.  By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact.  But Giuliani has conceded they were statements of fact.  So that argument is out - he defeated it himself!  

The other possible argument – that the statements were constitutionally protected, is also flawed.  First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability.  That’s what defamation law is all about.  So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.

On that, the doctrine has created different standards for different categories of plaintiffs.  If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected.  But the plaintiffs in this case were neither.  They were private persons performing a volunteer job as election officials.  I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct.  If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.   

Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information.  Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial.  You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial.  In this case, the plaintiffs may want to use discovery to determine if there are other potential defendants they can go after or to discover support for a claim for punitive damages, for example.

The fact Giuliani says he is conceding the elements of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly. 

And, further, defamation was not the only claim in this case.  The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.

For these reasons, it seems to me the decision to concede the elements of the defamation cause of action was not a very smart one.  It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.

Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.

For coverage of Giuliani's confession see Politico, NPR, MSNBC, The Guardian, The Hill, The Conversation and Above the Law.

UPDATE 8/9/23:  As expected, the judge did not buy it.  See here.

UPDATE: 9/3/23:  The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions.  The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs.  Go here for my post on this new development.