United States v. Heppner

What the court wrote

Verbatim from the court's document (public domain). Ellipses mark omitted text; nothing is paraphrased.

Thus, the communications between Heppner and Claude were not privileged at the time they took place. Moreover, even assuming that Heppner intended to share these communications with his counsel and eventually did so, it is black-letter law that non-privileged communications are not somehow alchemically changed into privileged ones upon being shared with counsel. Thus, because the AI Documents “would not be privileged if they remained in [Heppner’s] hands,” they did not “acquire protection merely because they were transferred” to counsel. See Gould, Inc. v. Mitsui Min. & Smelting Co., Ltd., 825 F.2d 676, 679-80 (2d Cir. 1987). ... The AI Documents do not merit protection under the work product doctrine because, even assuming, arguendo, that they were prepared “in anticipation of litigation,” In re Grand Jury Subpoenas, 318 F.3d at 383, they were nevertheless not “prepared by or at the behest of counsel,” id., nor did they reflect defense counsel’s strategy, see Matter of Grand Jury Subpoenas, 959 F.2d at 1167. ... Because Heppner’s use of Claude fails to satisfy either of these rules, the AI Documents do not merit the protections Heppner has claimed.

Authorities cited in the passage: Gould, Inc. v. Mitsui Mining & Smelting Co., Ltd., 825 F.2d 676 (2d Cir. 1987) · United States v. Nobles, 422 U.S. 225 (1975) · In re Grand Jury Subpoenas Dated March 19, 2002, and August 2, 2002, 318 F.3d 379 (2d Cir. 2003) · Matter of Grand Jury Subpoenas Dated Oct. 22, 1991, and Nov. 1, 1991, 959 F.2d 1158 (2d Cir. 1992)