The ruling conflicts sharply with a concurrent decision from Michigan. In Warner v. Gilbarco, Magistrate Judge Patti shielded a pro se plaintiff's ChatGPT-assisted materials as opinion work product, treating AI as a neutral tool comparable to word processors rather than as a third party capable of waiving privilege. Judge Patti found no waiver absent disclosure to opposing counsel. The two decisions emerged within days of each other from discovery disputes in unrelated cases, leaving the law unsettled.
Attorneys should treat these rulings as a warning about consumer AI platforms in sensitive work. The Heppner decision suggests that inputting privileged information into tools with permissive terms of service—even for strategic analysis—risks waiver regardless of intent. Firms should restrict such use to attorney-supervised processes or platforms with appropriate confidentiality protections. The conflicting outcomes mean courts remain divided on whether AI functions as a mere tool or as a third party capable of destroying privilege, making the issue ripe for appellate clarification.