Your client's AI chats
are discoverable.
United States v. Heppner, No. 1:25-cr-00503-JSR (S.D.N.Y. Feb. 17, 2026). Judge Rakoff ruled that documents created with a consumer AI platform carry no attorney-client privilege and no work product protection. All 31 seized documents: discoverable. A matter of first impression nationwide.
The privilege ruling
Risk · The ruling
A defendant under grand jury subpoena used the free consumer version of an AI platform to analyze his own defense. The FBI seized the outputs. The court held that consumer AI platforms are third parties whose terms of service do not preserve the confidentiality privilege requires.
Risk · Why it reaches every firm
Consumer AI platforms retain conversations. Retained conversations can be subpoenaed. Every matter a client or attorney has typed into a public AI tool since 2022 sits in a database that discovery can reach.
Protection · The safe harbor
The opinion points to enterprise AI with contractual confidentiality protections. Marcella runs inside your firm's own Microsoft 365 tenant. No third-party AI vendor in the data path. Nothing retained outside your tenant. Nothing for a subpoena to reach.
Fabricated citations.
The Mata problem.
Risk · The problem
Mata v. Avianca and the cases that followed it. Generative AI produces citations that look real: case names, reporters, page numbers, holdings. Some were never decided. The attorney who files them faces Rule 11 sanctions, bar discipline, and malpractice exposure.
Protection · How Marcella prevents it
Marcella retrieves from an indexed corpus of 10M+ opinions. Not in the index? Not in the output. Every citation passes a six-item Daubert attestation: real source, good law, overruled, distinguished, questioned, treatment history. All six answered before it reaches you.
Two crises. One governance gap. Full analysis and incident record: heppner-problem.com
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