[jcranmer]

Reading the ruling in more detail, this is definitely a "this is not even close case."

First off, the Fifth Amendment right to not self-incriminate is rather narrower than you might expect. With regard to document production, it only privileges you from having to produce documents if the act of producing those documents would in effect incriminate you. So if you tell people "I've got a diary where I've been keeping track of all the crimes I've committed..." the government can force you to turn over that diary.

Second, the default assumption whenever you send something to another person is that it's unprivileged communication. IANAL, but even using cloud storage for things I'd want to remain privileged is something I'd want to ask a lawyer about before relying on. Although that's also as much because the default privacy policy of most services is "fuck you."

Which is what happened here. Claude's privacy policy says that Anthropic reserves the right to share your chats with third parties for various reasons, which means you have no reasonable expectation of privacy in those communications in the first place and automatically defeats any other confidential privileges. What happened is therefore little different from the defendant texting his attorney's responses to his friends, which is a fairly time-worn way of defeating attorney-client privilege.

Seems an opportune time to remember that every day is STFU Friday. And, to quote The Wire, is you taking notes on a criminal fucking conspiracy?

[SoftTalker]

You cannot be compelled to provide testimonial evidence that might incriminate you. Physical evidence, documents, computer files, anything not under attorney-client privilege is fair game for a subpoena or warrant.

[ludicrousdispla]

What if I hire a lawyer to use Claude for me instead? Seems like that is space for a disruptive startup.

[Eddy_Viscosity2]

This maybe different. Unlike your own personal notes, your lawyers notes and records cannot be subpoenaed. But... the TOS from Claude might be a backdoor. So this is maybe an untested situation (as far as I know). The judge could decide the info is privileged because its an extension of the lawyers note-taking and research OR the judge could say its not privileged because the info was shared with Anthropic as a third party. Anybody know if this has happened yet?

[542354234235]

This isn’t really attorney client privilege and would much more likely fall under the work-product doctrine [1,2], where documents prepared for the purpose of future litigation are protected from discovery and could be considered analogous to attorney-client privilege (but is actually much more broadly defined than attorney-client privilege[4]). Google can and does provide emails and documents under subpoena, but courts have ruled multiple times that emails, google docs, etc. were protected under work product doctrine or attorney-client privilege. Just because a third party has it and is willing to give it over does not negate privilege. The “shared with Anthropic” argument does not hold up to precedent when SaaS is used.

Even if opposing counsel is able to obtain discovery on a work-product, only fact based products, not opinion based are allowed. In other words, the court is supposed to remove anything related to “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation” [3]. For conversations with AI about how to conduct your case, that would exclude basically everything since it is an opinion work-product, not a fact work product. A fact based work-product would be things like “statements or interviews of now deceased witnesses, photographs or video of an accident scene taken at the time of the accident”[4].

If I collected research and wrote down possible legal strategies in a Google Doc in preparation for meeting a new attorney, that would be protected. But if I do the exact same thing in google Gemini, it isn’t because Gemini “is not a lawyer” [5]? He ruled “Heppner did not [use Claude] at the suggestion or direction of counsel [5]” but as I just said, you are protected when self-initiating note taking before meeting with an attorney. The attorney does not have to direct you to do it for it to be protected. Honestly this really doesn’t read as solid reasoning underpinning the ruling at all.

[1] https://www.floridabar.org/the-florida-bar-journal/the-work-...

[2] https://en.wikipedia.org/wiki/Work-product_doctrine

[3] https://coxlawflorida.com/florida-rules-of-civil-procedure/r...

[4] https://tenthings.blog/2019/06/05/ten-things-a-primer-on-the...

[5] The court docs with Judge ruling