02/25/2026
Heads Up!
There are many publicly available “generative AI” tools you can use for free, and when you use them, you agree to certain terms and conditions (e.g., AI tool provider boilerplate or click through fine print about privacy and copyright, etc.) No surprise there, right? What may surprise you is that if you send anything you generate that way to your own trusted attorney, it likely isn’t protected by attorney/client privilege because your privacy rights are affected in part by that AI tool provider’s boilerplate or click through fine print about privacy and copyright, etc. This is a rapidly evolving area of law, but a recently reported SDNY hearing on February 10, 2026 (written decision issued on February 17), Judge Jed S. Rakoff (of the Southern District of New York) held that when a defendant used a generative AI tool to prepare on his own draft documents and then sent to his attorney, those documents were not protected from discovery by the attorney-client privilege. That would be a nasty surprise, which could lead to some very uncomfortable depositions.
