While attorneys have been focusing on the impact on the attorney-client privilege and the attorney work product doctrine in the wake of United States v. Heppner, a recent decision out of the Eastern District of Pennsylvania highlights yet another reason why attorneys need to incorporate into their litigation hold letters to clients clear directives on the use of AI.
In Fry v. Fry, 26-cv-3469-KSM (ED PA), a pro se litigant seeking leave to file certain documents under seal was ordered to submit a certification describing any assistance of AI that he used in the preparation of his Motion. The litigant disclosed that, among other things, he had uploaded redacted copies of his documents to non-enterprise versions of Anthropic’s Claude. The Court noted that Anthropic clearly discloses that documents uploaded to the non-enterprise version of Claude are processed on Anthropic’s servers, and that such information is not private. The Court determined that, as a result, “it would be inappropriate for the Court to seal a document that has already been provided to a private, for-profit research and artificial intelligence company.” Fry, 26-CV-3469, Dkt. No. 61, Fn. 4.
While the Court ultimately allowed the litigant to file under seal some of the redacted information that was not provided to Anthropic, the Court recognized that when applying the requisite strict scrutiny under First Amendment principles for the public’s right of access to court records, wholesale sealing of documents that a litigant voluntarily disclosed to a public generative AI platform would be improper. Had unredacted copies of the materials been uploaded, it is reasonable to assume that the Court would have declined to allow any measure of sealing.
Fry serves as a reminder that, as much as attorneys and courts are rightfully concerned about the output of generative AI platforms, we must also be cognizant of the input.
This publication is provided by Greenspoon Marder LLP is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.
