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Be careful: chatting with AI about your case is discoverable

harvardlawreview.org

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Re: Be careful: chatting with AI about your case is discoverable

#3

Post by pseingatl »

That's one judge. An audio tape made by a criminal defendant is intended for review by his counsel is a non-discoverable privileged communication. The tape retains this character if reviewed by an attorney-authorized paralegal. What difference exists where the attorney has the tape summarized by AI. I respectfully submit that Hizzoner is incorrect.

We might also ask if the best venue to decide national AI regulation is a single judge sitting in a criminal case involving a fraudster. If Judge Rakoff is correct, then a trade secret shared with AI is no longer a trade secret. This affects not just a single NY criminal defendant, but anyone that runs a company and wants to keep business practices secret. I would submit that this is no way to regulate a field such as AI.

Re: Be careful: chatting with AI about your case is discoverable

#4

Post by pavel_lishin »

pseingatl wrote: post #3

That's one judge. An audio tape made by a criminal defendant is intended for review by his counsel is a non-discoverable privileged communication. The tape retains this character if reviewed by an attorney-authorized paralegal. What difference exists where the attorney has the tape summarized by AI. I respectfully submit that Hizzoner is incorrect. We might also ask if the best venue to decide national AI regulation…

> What difference exists where the attorney has the tape summarized by AI.

But that's not what happened here.

Re: Be careful: chatting with AI about your case is discoverable

#5

Post by Terr_ »

It seems the key here isn't—or shouldn't be—what kind of service the defendant used, but whether something special happens when a service is involved in preparing a message to his lawyer.

IMO if the "for my lawyer" purpose/intent is not in dispute, then it shouldn't matter whether the service is a search-engine, an LLM, a browser-based word processor, or the drafts/sent folders of a webmail client.

The reverse direction is much clearer: Imagine a client receives an obviously-privileged email from their lawyer, and uses a cloud text-to-speech service to listen to it. Should that audio/text be admissible as evidence? Hell no.

Re: Be careful: chatting with AI about your case is discoverable

#6

Post by markisus »

pavel_lishin wrote: post #4
pseingatl wrote: post #3

That's one judge. An audio tape made by a criminal defendant is intended for review by his counsel is a non-discoverable privileged communication. The tape retains this character if reviewed by an attorney-authorized paralegal. What difference exists where the attorney has the tape summarized by AI. I respectfully submit that Hizzoner is incorrect. We might also ask if the best venue to decide national AI regulation…

> What difference exists where the attorney has the tape summarized by AI. But that's not what happened here.

But this ruling will surely set precedent for other cases where AI is used. It may cover the case of AI summaries as well.

Re: Be careful: chatting with AI about your case is discoverable

#7

Post by anon373839 »

This is a really interesting and well written case update/critique. I agree with the author's that the judge's reliance on Anthropic's fine-print privacy policy does not satisfy the actual legal standard governing privilege. Or if it did, it would raise extremely thorny issues around all of the cloud-based technology products that lawyers and clients use every day.

That said, I note that the court's opinion specifically calls out Anthropic's practice of *training models on user data* as a reason why the defendant could not have expected confidentiality. I do not use these cloud models for anything important precisely because they are operated by companies, like Anthropic, that are completely untrustworthy.

Re: Be careful: chatting with AI about your case is discoverable

#8

Post by quietsegfault »

anon373839 wrote: post #7

This is a really interesting and well written case update/critique. I agree with the author's that the judge's reliance on Anthropic's fine-print privacy policy does not satisfy the actual legal standard governing privilege. Or if it did, it would raise extremely thorny issues around all of the cloud-based technology products that lawyers and clients use every day. That said, I note that the court's opinion specifica…

That was my first thought. If the test is “talking to a lawyer”, and all tools not directly controlled by the lawyer fall outside of the safe haven, then any cloud legal tools are not safe. What a stupid ruling.

Re: Be careful: chatting with AI about your case is discoverable

#10

Post by grepfru_it »

markisus wrote: post #6
pavel_lishin wrote: post #4

Earlier quoted context omitted.

> What difference exists where the attorney has the tape summarized by AI. But that's not what happened here.

But this ruling will surely set precedent for other cases where AI is used. It may cover the case of AI summaries as well.

> But this ruling will surely set precedent for other cases where AI is used.

I dont remember which court. But this is typically in that jurisdiction. It can be appealed higher. SCOTUS has not ruled so it’s still up for further argument

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