A recent court decision serves as a reminder about how nearly everything can be discoverable, even AI chats.

Court Holds AI Chat Discoverable in Criminal Case

In October 2025, the United States charged Bradley Heppner with various counts of securities fraud, wire fraud, conspiracy, and falsifying corporate records. As people do these days, Heppner turned to AI for advice on what to do next, from outlining his overall defense strategy to how to present certain (bad) facts. On February 10, 2026, the Southern District of New York ruled Heppner’s chat logs were discoverable and could be used as evidence of Heppner’s alleged misdeeds. The court’s ruling was based on its findings that AI is not a lawyer, that the chats were not confidential (as stated in most AI platforms’ terms of service) and that AI was not providing legal advice (as stated in the platform’s disclaimers).

AI Chats in the HR Arena  

While Heppner dealt with criminal securities fraud, it should be a cautionary tale for employers and HR professionals: when investigating employee misconduct, managing a termination, managing a workplace dispute, AI chat logs may be available as evidence in a later lawsuit.

Here are our top tips to protect AI communications or, if they become discoverable, avoid problems:

• Engage counsel before turning to AI. Your greatest exposure is before you engage counsel. Remember, communications made at the direction of an attorney are entitled to additional protections, and AI is not an attorney. 

• Review AI platform privacy terms. Most consumer AI platforms automatically opt you in to sharing your searches for training purposes, but many allow you to turn that function off (potentially in exchange for a subscription fee). Disabling that function supports the argument that the communications were at least intended to be confidential.

• Educate employees to treat AI communications like emails or texts. Assume they may one day be read in court, because as Heppner shows us, they might be.

HR teams: Now’s the time to review your AI policies and educate employees on safe, compliant AI use. Reach out to your Encompass Human Capital Consultant or Client Experience Manager with any questions, or contact us at hello@theencompassgroup.com.

This article is for informational purposes only and should not be considered legal advice. Employers should consult with their counsel if they have any legal questions regarding employment issues and/or the discoverability of AI chat logs.

Written by Christie Newkirk and Jordan Brownlow Perry with Carrington, Coleman, Sloman & Blumenthal, L.L.P.