Are AI Legal Chats by Non-Lawyer Officers and Directors Discoverable?

Wed, 22 Jul 2026 11:30:35 +0000

Posted by Gail Weinstein, Philip Richter, and Steven Epstein, Fried, Frank, Harris, Shriver & Jacobson LLP, on Wednesday, July 22, 2026

Editor's Note:

Gail Weinstein is a Senior Counsel, Philip Richter is a Partner and a Co-Head of the M&A and Private Equity Practice, and Steven Epstein is the Managing Partner at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Steven J. Steinman, Randi Lally, and Colum J. Weiden, and is part of the Delaware Law Series; links to other posts in the series are available here.

One might expect the response to be uncomplicated—say, that such conversations would not be protected from discovery, under either the attorney-client privilege or the attorney work product doctrine, because AI is not an attorney. But courts are just beginning to grapple with this question, and the answers have been varied:

In U.S. v. Heppner (S.D.N.Y. Feb. 17, 2026), a federal district court in New York held that a criminal defendant’s exchanges with a consumer version of Claude, which were not directed by his lawyer, were discoverable.
And, in Fortis Advisors v. Krafton (Del. Ct. Ch. Mar. 19, 2026), the Delaware Court of Chancery considered as evidence a CEO’s ChatGPT exchanges that provided a legal strategy for the company to avoid having to pay an earnout obligation.
However, in Warner v. Gilbarco Inc. (E.D. Mich. Feb. 10, 2026), a federal district court in Michigan held that a pro se litigant’s use of AI was work product, and so was protected from discovery, because it was used in anticipation of litigation and in a manner not likely to get into an adversary’s hands.

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The Harvard Law School Forum on Corporate Governance

Are AI Legal Chats by Non-Lawyer Officers and Directors Discoverable?