“ChatGPT, do I have a case?” Before you ask AI any legal question, be sure to take precautions to maintain privilege and confidentiality protection of the information you submit to an AI service. Without using AI for litigation properly, you may inadvertently lose privilege and confidentiality protection over the information you submit to AI.
In Canada, the primary basis for asserting privilege are solicitor-client privilege and litigation privilege. To date, there has yet to be a leading case authority on the issues of AI use and legal privilege in Canada.
Over the past year, international courts in the United Kingdom and United States have considered these very questions of privilege with AI use in the context of their own legal privilege and confidentiality laws. The reasoning of these courts can be informative how the Canadian courts may reason through these legal issues and fact scenarios in the future.
Here is a shortlist of 5 top international cases on AI and privilege in the United Kingdom and United States:
1. UK and R (on the application of Munir) v Secretary of State for the Home Department [2026] UKUT 81 (IAC) – November 17, 2025 – Upper Tribunal, Immigration and Asylum Chamber, United Kingdom
- Judge Lindsley held that submitting documents to an open-source AI service, such as ChatGPT, is to place this information in the public domain, and thus breaches client confidentiality and waives legal privilege.
- The court also held Munir, as a legal professional, was responsible for hallucinated cases that he submitted and was obliged to ensure what is presented to the court is factually and legally accurate.
2. United States v. Heppner, 1:25-cr-00503, (S.D.N.Y.) – February 17, 2026 – U.S. District Court for the Southern District of New York, New York, USA
- Judge Rakoff held that documents created by the defendant Heppner using Anthropic’s consumer-grade AI platform Clause were not protected by attorney-client privilege or the work product doctrine. The court reasoned:
- No attorney-client privilege – the Claude AI service is not an attorney and communications between two non-attorney parties is not privileged.
- No confidentiality – Using a consumer version of Claude was subject to a privacy policy that explicitly notified the user the data may be disclosed to law enforcement agencies or third parties.
- AI use not at direction of legal counsel – Heppner’s use of Claude was by his own volition and not at the request or direction of his legal counsel, and delivery of the AI-generated documents to legal counsel after the fact did not repair this issue.
3. Warner v. Gilbarco, Inc . et al, 2:2024cv12333 – February 10, 2026 – Michigan, USA
- Magistrate Judge Patti held that the work product doctrine protects “documents and tangible things that are prepared in anticipation of litigation or for trial by another party or its representative” and so protected the plaintiff’s use of ChatGPT to assist her litigation.
- Since the plaintiff was a self-represented litigant, the plaintiff had the right to assert work-product privilege over the material submitted to an AI service.
- Waiver of work product privilege required disclosure to an adversary or disclosure in a manner likely to get into an adversary’s hand.
4. Morgan v V2X Inc., Morgan v. V2X, Inc., 1:25-cv-01991, (D. Colo.) – March 30, 2026 – District Court, Colorado, USA
- Judge Braswell held that work product protection extends to self-represented litigants when they use AI-generated materials for their litigation.
- However, to maintain the protection, the confidential information must not be uploaded into an AI tool unless the AI provider is contractually prohibited from training on confidential data, retaining uploaded materials, or disclosing them to third parties beyond what is necessary to complete their services.
5. Tate Group Automotive, LLC v. Legacy Automotive Capital, LLC, No. 25-BC11B-0020 (Bus. Ct. Tex. June 3, 2026) – June 3, 2026 – Texas Business Court Eleventh Division, Texas, USA
- Judge Dorfman disagreed with the Heppner decision and noted the Texas rules set a different standard for protectable attorney work product and on their face extend to the communication with the AI service. The court reasoned that:
- Work product privilege is waived only when the materials are disclosed to or are likely to be communicated to an adversary.
To understand how AI use can impact confidentiality and privilege protection in Canada, be sure to consult with a lawyer first and before you use AI for a litigation purpose.
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