Daniel M. Schwarz

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

Michael Hill (Associate-Stamford, CT) and Stephen Brown (Partner-Stamford, CT) prevailed in a case involving alleged negligence toward the Plaintiff’s son at a popular daycare facility in Norwalk, CT. The Plaintiff alleged that the Defendant negligently supervised its employees during the months of June and July 2024, causing injuries and damages, such as rashes, to his son. These rashes, in Plaintiff’s own words, resembled those of bed bug bites. Plaintiff thus alleged that the caregivers inadequately cared for and supervised his son and were the sole cause of his and his son’s alleged damages. It was also alleged that Plaintiff and Plaintiff’s son both suffered from emotional distress because of this incident and that the Plaintiff personally suffered from financial hardship, such as lost wages and impairment of earning capacity. The initial demand was $4M, and even when the demand became more realistic, Michael and Stephen refused to settle as they recognized that Plaintiff's case was weak. They engaged in only limited negotiations, focusing instead on moving for summary judgment as it grew abundantly clear the Plaintiff could not prove his allegations. The motion for summary judgment was granted in its entirety a week before trial.

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.” 

In United States v. Heppner, No. 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697 (S.D.N.Y. Feb. 17, 2026), the United States District Court for the Southern District of New York addressed a question of first impression: whether communications with a publicly available artificial intelligence platform, made in connection with a pending criminal investigation, are protected by the attorney-client privilege or the work-product doctrine. The court answered “no.” The defendant, Bradley Heppner, used the generative AI platform Claude after receiving a grand jury subpoena and learning that he was a target of a federal investigation. He used the platform to prepare materials addressing possible charges, defenses and legal strategy, which he later shared with his attorneys. The court held that the communications were protected by neither the attorney-client privilege nor the work-product doctrine. Attorney-Client Privilege Under Second Circuit law, the attorney-client privilege protects communications that are: (1) between a client and an attorney; (2) intended to be, and actually kept, confidential; and (3) made for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). The court found that Heppner’s communications with Claude failed these requirements. Claude was not an attorney, and discussing legal issues with a nonlawyer platform did not create an attorney-client relationship. The communications were also not confidential because Heppner voluntarily transmitted information to a third-party AI provider whose privacy policy permitted the collection and retention of user inputs and outputs and allowed certain disclosures to third parties. The court further held that, even if Heppner entered information that he had originally received from counsel, any privilege was waived when he disclosed that information to the AI platform. The materials did not later become privileged merely because Heppner shared them with his attorneys. Finally, Heppner’s counsel did not direct him to use Claude. Although Heppner claimed that he created the materials to assist later discussions with counsel, the court focused on the purpose of the communications when they were made. Heppner independently sought assistance from Claude, which the provider expressly disclaimed providing formal legal advice. Work-Product Protection The work-product doctrine generally protects materials prepared by or at the direction of counsel in anticipation of litigation and is intended to safeguard an attorney’s mental impressions, legal theories and litigation strategy. Although Heppner created the documents while anticipating criminal charges, his attorneys did not direct him to use Claude. He acted independently, and the documents did not reflect counsel’s strategy when they were created. The fact that the materials may have later influenced counsel’s strategy was insufficient to establish work-product protection. The court did leave open the possibility that a different analysis could apply where counsel directs the use of an AI system and the technology functions as an agent assisting counsel. However, the court did not decide whether an AI platform could qualify as such an agent. Other Courts Take a Different Approach Shortly before Heppner, a federal court in Michigan reached a different result in Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026). There, the court held that a pro se plaintiff’s use of ChatGPT to assist with litigation preparation was protected work product. The Warner court emphasized that waiver of work-product protection differs from waiver of the attorney-client privilege. While disclosure to an ordinary third party may waive the attorney-client privilege, work product is generally waived only where disclosure is made to an adversary or in a manner that substantially increases the likelihood that an adversary will obtain the material. The court characterized ChatGPT as a tool rather than a person and concluded that compelling the plaintiff’s prompts and outputs would improperly expose her internal analysis and litigation thought process. The District of Colorado followed a similar approach in Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939 (D. Colo. Mar. 30, 2026). The court held that a pro se litigant could assert work-product protection over AI-assisted litigation preparation because Federal Rule of Civil Procedure 26(b)(3) protects materials prepared by or for a party, not only materials prepared by counsel. The Morgan court distinguished Heppner because it arose in a criminal matter involving a represented defendant who acted independently of counsel. By contrast, a pro se litigant simultaneously acts as both party and advocate. The court nevertheless required the plaintiff to identify which AI tools he used and amended the protective order to restrict the use of confidential information in AI platforms lacking sufficient contractual protections. A New York state court reached a similar result in Assini v. Hayward, 2026 NYLJ LEXIS 916 (Sup. Ct. Nassau Cty. June 4, 2026). The court quashed a subpoena directed to OpenAI seeking a pro se defendant’s prompts, inputs, outputs and AI-assisted legal research. Relying on Morgan, the court found that the materials could qualify for protection as materials prepared in anticipation of litigation under CPLR 3101(d). The court, nevertheless, directed the litigant to comply with New York’s rules governing the use of AI in litigation. An Emerging Distinction Read together, these decisions suggest that courts may distinguish between attorney-client privilege and work-product protection when evaluating AI-assisted materials. The attorney-client privilege remains particularly vulnerable where confidential information is voluntarily entered into a publicly available AI platform. Because the platform is not an attorney and the information is disclosed to an outside provider, the traditional requirements of an attorney-client communication and confidentiality may be absent. The work-product analysis may be more flexible. Warner, Morgan and Assini indicate that some courts may protect AI-assisted research, drafting and analysis where the materials reflect a litigant’s own mental impressions and were created in anticipation of litigation, particularly where the user is proceeding pro se. However, courts may still require disclosure of the tools used, impose protective-order restrictions, and enforce local AI rules. Whether work-product protection will extend to a represented client using AI at counsel’s direction remains unresolved. The outcome may depend on who directed the work, the purpose of the AI use, whether the materials reflect counsel’s strategy, and whether the platform’s data practices create a meaningful risk of disclosure to an adversary. Considerations for Attorneys Using AI These decisions do not establish that every use of AI destroys privilege or that all AI-assisted materials are protected work products. Instead, they demonstrate that the analysis will depend on the nature of the protection asserted, the circumstances surrounding the AI use, and the forum where the case is heard. Law firms should evaluate whether an AI provider retains prompts, uses customer information for model training or permits disclosure to vendors, regulators, law enforcement or litigants. Where confidential information is involved, firms should consider enterprise or internally controlled systems with contractual confidentiality protections, limited retention, restricted data use, and appropriate access controls. Attorneys should also supervise AI-assisted litigation work and affirmatively direct its use where appropriate, rather than attempting to characterize a client’s independent AI activity as work product after the fact. Clients should be instructed not to enter attorney communications, case facts, witness information, or legal strategy into publicly available AI platforms without counsel’s approval. Summary Heppner, Warner, Morgan and Assini demonstrate that courts are beginning to apply traditional privilege and work-product principles differently depending on the context of the AI use. Heppner reflects a strict application of attorney-client privilege and work-product rules where a represented criminal defendant independently used a public AI platform. By contrast, Warner, Morgan and Assini reflect a greater willingness to protect the AI-assisted litigation preparation of pro se parties. For the legal community, the developing decisions highlight the need for clear AI policies, careful review of vendor privacy practices and direct client education. When confidential or litigation-related information is involved, AI use should be attorney-directed, limited to secure systems, and structured to preserve confidentiality and attorney work product. Even where substantive materials may be protected, courts may still require transparency concerning the tools used and impose restrictions on how confidential information is processed.

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Jennifer Moran (Partner-Madison, NJ) authored the article “Golf Course Liability for Lightning: Nearly 30-Year-Old Standard Meets New Technology,” published in the July 28, 2026, edition of Law.com. The article explores how two high-profile lightning strikes at New Jersey golf courses in 2025 could reshape premises liability law for recreational facilities. Jennifer explains that the resulting litigation may prompt New Jersey courts to revisit the nearly 30-year-old Maussner v. Atlantic City Country Club decision and redefine what constitutes reasonable care considering modern weather-monitoring and lightning-detection technology. She examines the legal framework established in Maussner, analyzing how advances in real-time weather alerts, GPS-integrated warning systems, and smartphone technology may influence future duty-of-care determinations, and discusses how the pending litigation could affect golf course operators, insurers, and premises liability practitioners nationwide. The article also offers practical guidance on risk management, emphasizing the importance of implementing, documenting, and consistently enforcing weather-monitoring and evacuation protocols, with Jennifer noting, "The central lesson remains instructive: liability turns not on whether a course adopts any particular safety measure but on whether it implements the measures it does adopt with reasonable care."

​Rebecca Young (Partner-Birmingham, AL) and Daniel Schwarz (Of Counsel-West Palm Beach, FL) obtained dismissal of all claims made against a manufacturer and supplier of window system components in a tragic matter involving the death of a child. The child was staying at an Alabama hotel when he became entangled in the looped cord of the hotel room's window covering system. During a pre-litigation inspection of the subject window system, component parts manufactured by Wilson Elser’s client were identified. Based on this finding, the plaintiff asserted various product liability claims against the client claiming that its acts and omissions caused the child’s fatality. In response to the complaint, Rebecca and Daniel moved to dismiss all claims based on lack of personal jurisdiction. Rebecca and Daniel supported the motion with affidavit testimony from the client's president establishing that the company, which was based in Canada, had no offices, employees, or distributors in Alabama; did not solicit business there; had not transacted business with any of the co-defendants; and had not done business directly with any Alabama customers. The client's president averred that the client had sold the part identified in the inspection both within Canada and in 23 states, but that Alabama was not among them. Based on these facts, Rebecca and Daniel argued that the case was distinguishable from recent U.S. Supreme Court and Alabama Supreme Court personal jurisdiction decisions in the product liability context, where those courts found personal jurisdiction was proper against defendants who had actively marketed and advertised products at issue in the forum state despite not having any claim-specific contact with the forum state. In light of the persuasive legal arguments presented by Rebecca and Daniel’s briefing, the plaintiff was forced to dismiss all claims against Wilson Elser's client. This early victory saved the client from incurring expensive legal fees and costs and allowed it to avoid the stress and time spent to defend against a high exposure wrongful death case.

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.” 

Michael Hill (Associate-Stamford, CT) and Stephen Brown (Partner-Stamford, CT) prevailed in a case involving alleged negligence toward the Plaintiff’s son at a popular daycare facility in Norwalk, CT. The Plaintiff alleged that the Defendant negligently supervised its employees during the months of June and July 2024, causing injuries and damages, such as rashes, to his son. These rashes, in Plaintiff’s own words, resembled those of bed bug bites. Plaintiff thus alleged that the caregivers inadequately cared for and supervised his son and were the sole cause of his and his son’s alleged damages. It was also alleged that Plaintiff and Plaintiff’s son both suffered from emotional distress because of this incident and that the Plaintiff personally suffered from financial hardship, such as lost wages and impairment of earning capacity. The initial demand was $4M, and even when the demand became more realistic, Michael and Stephen refused to settle as they recognized that Plaintiff's case was weak. They engaged in only limited negotiations, focusing instead on moving for summary judgment as it grew abundantly clear the Plaintiff could not prove his allegations. The motion for summary judgment was granted in its entirety a week before trial.

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

In United States v. Heppner, No. 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697 (S.D.N.Y. Feb. 17, 2026), the United States District Court for the Southern District of New York addressed a question of first impression: whether communications with a publicly available artificial intelligence platform, made in connection with a pending criminal investigation, are protected by the attorney-client privilege or the work-product doctrine. The court answered “no.” The defendant, Bradley Heppner, used the generative AI platform Claude after receiving a grand jury subpoena and learning that he was a target of a federal investigation. He used the platform to prepare materials addressing possible charges, defenses and legal strategy, which he later shared with his attorneys. The court held that the communications were protected by neither the attorney-client privilege nor the work-product doctrine. Attorney-Client Privilege Under Second Circuit law, the attorney-client privilege protects communications that are: (1) between a client and an attorney; (2) intended to be, and actually kept, confidential; and (3) made for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). The court found that Heppner’s communications with Claude failed these requirements. Claude was not an attorney, and discussing legal issues with a nonlawyer platform did not create an attorney-client relationship. The communications were also not confidential because Heppner voluntarily transmitted information to a third-party AI provider whose privacy policy permitted the collection and retention of user inputs and outputs and allowed certain disclosures to third parties. The court further held that, even if Heppner entered information that he had originally received from counsel, any privilege was waived when he disclosed that information to the AI platform. The materials did not later become privileged merely because Heppner shared them with his attorneys. Finally, Heppner’s counsel did not direct him to use Claude. Although Heppner claimed that he created the materials to assist later discussions with counsel, the court focused on the purpose of the communications when they were made. Heppner independently sought assistance from Claude, which the provider expressly disclaimed providing formal legal advice. Work-Product Protection The work-product doctrine generally protects materials prepared by or at the direction of counsel in anticipation of litigation and is intended to safeguard an attorney’s mental impressions, legal theories and litigation strategy. Although Heppner created the documents while anticipating criminal charges, his attorneys did not direct him to use Claude. He acted independently, and the documents did not reflect counsel’s strategy when they were created. The fact that the materials may have later influenced counsel’s strategy was insufficient to establish work-product protection. The court did leave open the possibility that a different analysis could apply where counsel directs the use of an AI system and the technology functions as an agent assisting counsel. However, the court did not decide whether an AI platform could qualify as such an agent. Other Courts Take a Different Approach Shortly before Heppner, a federal court in Michigan reached a different result in Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026). There, the court held that a pro se plaintiff’s use of ChatGPT to assist with litigation preparation was protected work product. The Warner court emphasized that waiver of work-product protection differs from waiver of the attorney-client privilege. While disclosure to an ordinary third party may waive the attorney-client privilege, work product is generally waived only where disclosure is made to an adversary or in a manner that substantially increases the likelihood that an adversary will obtain the material. The court characterized ChatGPT as a tool rather than a person and concluded that compelling the plaintiff’s prompts and outputs would improperly expose her internal analysis and litigation thought process. The District of Colorado followed a similar approach in Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939 (D. Colo. Mar. 30, 2026). The court held that a pro se litigant could assert work-product protection over AI-assisted litigation preparation because Federal Rule of Civil Procedure 26(b)(3) protects materials prepared by or for a party, not only materials prepared by counsel. The Morgan court distinguished Heppner because it arose in a criminal matter involving a represented defendant who acted independently of counsel. By contrast, a pro se litigant simultaneously acts as both party and advocate. The court nevertheless required the plaintiff to identify which AI tools he used and amended the protective order to restrict the use of confidential information in AI platforms lacking sufficient contractual protections. A New York state court reached a similar result in Assini v. Hayward, 2026 NYLJ LEXIS 916 (Sup. Ct. Nassau Cty. June 4, 2026). The court quashed a subpoena directed to OpenAI seeking a pro se defendant’s prompts, inputs, outputs and AI-assisted legal research. Relying on Morgan, the court found that the materials could qualify for protection as materials prepared in anticipation of litigation under CPLR 3101(d). The court, nevertheless, directed the litigant to comply with New York’s rules governing the use of AI in litigation. An Emerging Distinction Read together, these decisions suggest that courts may distinguish between attorney-client privilege and work-product protection when evaluating AI-assisted materials. The attorney-client privilege remains particularly vulnerable where confidential information is voluntarily entered into a publicly available AI platform. Because the platform is not an attorney and the information is disclosed to an outside provider, the traditional requirements of an attorney-client communication and confidentiality may be absent. The work-product analysis may be more flexible. Warner, Morgan and Assini indicate that some courts may protect AI-assisted research, drafting and analysis where the materials reflect a litigant’s own mental impressions and were created in anticipation of litigation, particularly where the user is proceeding pro se. However, courts may still require disclosure of the tools used, impose protective-order restrictions, and enforce local AI rules. Whether work-product protection will extend to a represented client using AI at counsel’s direction remains unresolved. The outcome may depend on who directed the work, the purpose of the AI use, whether the materials reflect counsel’s strategy, and whether the platform’s data practices create a meaningful risk of disclosure to an adversary. Considerations for Attorneys Using AI These decisions do not establish that every use of AI destroys privilege or that all AI-assisted materials are protected work products. Instead, they demonstrate that the analysis will depend on the nature of the protection asserted, the circumstances surrounding the AI use, and the forum where the case is heard. Law firms should evaluate whether an AI provider retains prompts, uses customer information for model training or permits disclosure to vendors, regulators, law enforcement or litigants. Where confidential information is involved, firms should consider enterprise or internally controlled systems with contractual confidentiality protections, limited retention, restricted data use, and appropriate access controls. Attorneys should also supervise AI-assisted litigation work and affirmatively direct its use where appropriate, rather than attempting to characterize a client’s independent AI activity as work product after the fact. Clients should be instructed not to enter attorney communications, case facts, witness information, or legal strategy into publicly available AI platforms without counsel’s approval. Summary Heppner, Warner, Morgan and Assini demonstrate that courts are beginning to apply traditional privilege and work-product principles differently depending on the context of the AI use. Heppner reflects a strict application of attorney-client privilege and work-product rules where a represented criminal defendant independently used a public AI platform. By contrast, Warner, Morgan and Assini reflect a greater willingness to protect the AI-assisted litigation preparation of pro se parties. For the legal community, the developing decisions highlight the need for clear AI policies, careful review of vendor privacy practices and direct client education. When confidential or litigation-related information is involved, AI use should be attorney-directed, limited to secure systems, and structured to preserve confidentiality and attorney work product. Even where substantive materials may be protected, courts may still require transparency concerning the tools used and impose restrictions on how confidential information is processed.

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Jennifer Moran (Partner-Madison, NJ) authored the article “Golf Course Liability for Lightning: Nearly 30-Year-Old Standard Meets New Technology,” published in the July 28, 2026, edition of Law.com. The article explores how two high-profile lightning strikes at New Jersey golf courses in 2025 could reshape premises liability law for recreational facilities. Jennifer explains that the resulting litigation may prompt New Jersey courts to revisit the nearly 30-year-old Maussner v. Atlantic City Country Club decision and redefine what constitutes reasonable care considering modern weather-monitoring and lightning-detection technology. She examines the legal framework established in Maussner, analyzing how advances in real-time weather alerts, GPS-integrated warning systems, and smartphone technology may influence future duty-of-care determinations, and discusses how the pending litigation could affect golf course operators, insurers, and premises liability practitioners nationwide. The article also offers practical guidance on risk management, emphasizing the importance of implementing, documenting, and consistently enforcing weather-monitoring and evacuation protocols, with Jennifer noting, "The central lesson remains instructive: liability turns not on whether a course adopts any particular safety measure but on whether it implements the measures it does adopt with reasonable care."

​Rebecca Young (Partner-Birmingham, AL) and Daniel Schwarz (Of Counsel-West Palm Beach, FL) obtained dismissal of all claims made against a manufacturer and supplier of window system components in a tragic matter involving the death of a child. The child was staying at an Alabama hotel when he became entangled in the looped cord of the hotel room's window covering system. During a pre-litigation inspection of the subject window system, component parts manufactured by Wilson Elser’s client were identified. Based on this finding, the plaintiff asserted various product liability claims against the client claiming that its acts and omissions caused the child’s fatality. In response to the complaint, Rebecca and Daniel moved to dismiss all claims based on lack of personal jurisdiction. Rebecca and Daniel supported the motion with affidavit testimony from the client's president establishing that the company, which was based in Canada, had no offices, employees, or distributors in Alabama; did not solicit business there; had not transacted business with any of the co-defendants; and had not done business directly with any Alabama customers. The client's president averred that the client had sold the part identified in the inspection both within Canada and in 23 states, but that Alabama was not among them. Based on these facts, Rebecca and Daniel argued that the case was distinguishable from recent U.S. Supreme Court and Alabama Supreme Court personal jurisdiction decisions in the product liability context, where those courts found personal jurisdiction was proper against defendants who had actively marketed and advertised products at issue in the forum state despite not having any claim-specific contact with the forum state. In light of the persuasive legal arguments presented by Rebecca and Daniel’s briefing, the plaintiff was forced to dismiss all claims against Wilson Elser's client. This early victory saved the client from incurring expensive legal fees and costs and allowed it to avoid the stress and time spent to defend against a high exposure wrongful death case.

Joe Baiocco (Partner-White Plains, NY) will speak on August 26, 2026, at the Cottingham & Butler Transportation Summit. He will discuss the methods used by organized fraud rings, including how their schemes work, and the operational strategies transportation carriers can implement to avoid becoming the next "nuclear" verdict headline.

Stuart Miller (Partner-New York, NY/West Palm Beach/Orlando/Miami) will join the panel “Preventing the ‘Big Loss’ in Liability Litigation” at the Workers’ Compensation Institute’s (WCI) 80th Annual Workers’ Compensation Educational Conference and 37th Safety & Health Conference, to be held August 22 ‒ 26, 2026, at the Orlando World Center Marriott in Orlando, Florida. Stuart, as defense counsel frequently called to “parachute in” on difficult cases, will be joined by a renowned attorney from the South Florida Plaintiff’s Bar and a risk manager from the industrial construction realm. The panelists will examine how risk managers, claims professionals, and in-house counsel can avoid costly mistakes that lead to catastrophic liability outcomes and potentially career-defining losses. They’ll explore the growing challenges posed by social inflation, litigation funding, litigation abuse, and increasingly large jury verdicts, as well as evolving plaintiff strategies and lessons learned from both defense and plaintiff perspectives on what drives successful litigation outcomes. The session also provides practical strategies for managing litigation risk in the shifting landscape of personal injury litigation. 

Valerie Kellner (Of Counsel-Philadelphia, PA) was reelected as a Senior Director for the Federation of Defense and Corporate Counsel (FDCC) at the 2026 Annual Meeting. She currently serves on the Board of Directors and the Executive Committee. The FDCC is an invitation-only organization of lawyers who focus their practice on the defense of civil claims and representation of insurers and corporations. 

​Jonathan Meer (Partner-New York, NY) was quoted in the July 30, 2026, installment of Law360 as part of an article titled “United’s CrowdStrike Fight Promises Cyber Coverage Insights.” Jonathan distinguishes between primary and excess insurers and notes that the latter are “free to make differing assessments of liability and coverage, including from other excess insurers.”  He continues, “The question becomes, ‘What is their good faith assessment of the coverage evaluation?’ and reasonable minds can differ.” 

Michael Hill (Associate-Stamford, CT) and Stephen Brown (Partner-Stamford, CT) prevailed in a case involving alleged negligence toward the Plaintiff’s son at a popular daycare facility in Norwalk, CT. The Plaintiff alleged that the Defendant negligently supervised its employees during the months of June and July 2024, causing injuries and damages, such as rashes, to his son. These rashes, in Plaintiff’s own words, resembled those of bed bug bites. Plaintiff thus alleged that the caregivers inadequately cared for and supervised his son and were the sole cause of his and his son’s alleged damages. It was also alleged that Plaintiff and Plaintiff’s son both suffered from emotional distress because of this incident and that the Plaintiff personally suffered from financial hardship, such as lost wages and impairment of earning capacity. The initial demand was $4M, and even when the demand became more realistic, Michael and Stephen refused to settle as they recognized that Plaintiff's case was weak. They engaged in only limited negotiations, focusing instead on moving for summary judgment as it grew abundantly clear the Plaintiff could not prove his allegations. The motion for summary judgment was granted in its entirety a week before trial.

Q: What should an employer do when an employee needs a reasonable accommodation for a disability? A: Under the Americans with Disabilities Act (ADA), and in some instances under state and local laws, if an employee with a disability sufficiently requests an accommodation, the employer must engage in a good-faith, interactive process with the employee to identify if a reasonable accommodation exists. In practice, the interactive process is an ongoing, two-way dialogue rather than a single conversation. The employer typically asks the employee to clarify the nature of the limitation, may request reasonably necessary medical documentation supporting the need for accommodation, and should discuss and evaluate potential accommodation options with the employee, including why a particular option may or may not work. The employee, in turn, should respond to the employer’s questions, provide the requested medical information, and engage with proposed solutions rather than insisting on one preferred accommodation. This exchange often takes multiple rounds of communication and should continue until a reasonable accommodation is identified, or until the employer determines in good faith that none is available. Employers should document each step of this exchange contemporaneously, including the initial request, the information exchanged, the options discussed, and the reasons for accepting or rejecting each option, since this record is often decisive if the accommodation decision is later challenged. When Does the Duty to Engage Begin? As a practical matter, an employer should not wait for a formal or perfectly-worded request, though the legal trigger varies by jurisdiction. The Eleventh Circuit (Florida, Georgia, and Alabama), for example, requires the employee to make a specific demand for accommodation and provide enough information for the employer to understand how to address the limitation.1 In Owens v. Georgia, Governor's Office of Student Achievement, 52 F.4th 1327 (11th Cir. 2022),2 the court held that an employee who cited only childbirth-related complications, without more, and requested telework had not provided enough information to trigger the duty to engage. Other jurisdictions impose a lower burden. The Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) has held that the duty to engage is triggered merely by notice of the disability and a desire for3 accommodation—a more employee-protective standard. It has also held that if an employee is unable to request an accommodation but the employer knows of the disability, the employer must help initiate the process. Similarly, the requirements around the interactive process can be lenient depending on state and local requirements.  These cases set a floor, not a ceiling: they describe the minimum an employee must show before a court will find the duty to engage was legally triggered, not a safe harbor for delay. Given this jurisdictional variation and the fact-specific nature of the inquiry, employers seeking to protect against failure-to-accommodate claims should discuss potential accommodations whenever an employee requests one or raises a medical condition affecting their work—while remembering that engaging early does not obligate the employer to grant any particular accommodation. It simply starts the conversation and creates a record of good faith. What Accommodations Should an Employer Consider? Determining an appropriate accommodation is a case-by-case analysis, and multiple factors can be relevant, including the nature of the employee’s disability, the essential functions of the position, the operational needs of the business, and whether the underlying condition or needed accommodation is temporary or permanent. The ADA, at 42 U.S.C. § 12111(9), provides a non-exhaustive list of potential accommodations, including making facilities accessible, job restructuring, modified work schedules, reassignment to a vacant position, equipment modification, adjusted exams or training materials, and qualified readers or interpreters. The appropriate accommodation depends on the employee’s particular disability—for example, an employee with regular medical appointments might be accommodated with a modified schedule. Employers should evaluate each request individually and document the process. Limits on the Duty to Accommodate An employer need not remove essential job functions, nor must it provide an employee’s preferred accommodation if another available option allows the employee to perform those functions. While reassignment to a vacant position may be reasonable, the employer need not create a new position or reassign the employee to a role for which they are unqualified. Federal appellate courts are split on whether reassignment is mandatory: the Tenth Circuit, in Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999), held that it is, while the Fourth,4 Fifth,5 Eighth,6 and Eleventh Circuits7 have held that employers need only let the employee compete for the vacancy. Employers should confirm the applicable circuit’s standard before handling a reassignment request.  An employer also need not provide an accommodation that would create an undue hardship—a high standard requiring proof of significant difficulty or expense. The burden of proving undue hardship rests on the employer, not the employee: it is not enough to assert that an accommodation is inconvenient or costly; the employer must show, with specific evidence, the actual cost, its financial resources and size, and the impact on operations.  Practical Tips for Employers Employers should keep several practical points in mind.  1. A sound approach to protecting against claims is to discuss potential accommodations whenever an employee requests one or raises a medical condition needing a workplace adjustment. The legal floor for when the duty is actually triggered varies by jurisdiction and can be higher than this practical approach, so acting sooner helps guard against uncertainty. 2. Remember the process is a two-way obligation: employers should not wait passively for the employee to identify the perfect accommodation, and employees should not expect the employer to solve the problem unassisted. The employer should ask the employee to clarify the limitation, request necessary medical documentation, and discuss accommodation options; the employee should respond, provide the requested information, and engage with proposed solutions rather than insist on one preferred option. Both sides should share information and discuss options collaboratively and in good faith, often over multiple rounds, until a reasonable accommodation is identified or the employer determines in good faith that none exists. 3. Document each step of the process, including the initial request, information exchanged, options considered, and the reasoning behind any accommodation granted or denied, since this record can be critical if the decision is later challenged.  4. Approach the interactive process as an obligation to share information and discuss accommodations in good faith. An employer that genuinely engages is more likely to find a workable solution and avoid litigation that a defensive, box-checking approach often invites. Employers with questions about the ADA and the interactive process should consult an attorney. Employers have mandated duties under the ADA and comparable state and local laws, and failing to satisfy them can expose employers to significant liability, including claims for discrimination, failure to accommodate, and retaliation. Given these obligations and the fact-specific nature of the interactive process, it is always good practice to consult with employment counsel before making a final accommodation decision. ______________________________________________________________________________________________ 1 Frazier-White v. Gee, 818 F.3d 1249 (11th Cir. 2016). 2 Owens addressed the Rehabilitation Act, but it applies equally to the Americans with Disabilities Act. 3 Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), r’vd on other grounds 535 U.S. 391 (2002). 4 Elledge v. Lowe’s Home Ctrs., 979 F.3d 1004 (4th Cir. 2020). 5 Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) 6 Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007). 7 EEOC v. St. Joseph's Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016).

In United States v. Heppner, No. 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697 (S.D.N.Y. Feb. 17, 2026), the United States District Court for the Southern District of New York addressed a question of first impression: whether communications with a publicly available artificial intelligence platform, made in connection with a pending criminal investigation, are protected by the attorney-client privilege or the work-product doctrine. The court answered “no.” The defendant, Bradley Heppner, used the generative AI platform Claude after receiving a grand jury subpoena and learning that he was a target of a federal investigation. He used the platform to prepare materials addressing possible charges, defenses and legal strategy, which he later shared with his attorneys. The court held that the communications were protected by neither the attorney-client privilege nor the work-product doctrine. Attorney-Client Privilege Under Second Circuit law, the attorney-client privilege protects communications that are: (1) between a client and an attorney; (2) intended to be, and actually kept, confidential; and (3) made for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). The court found that Heppner’s communications with Claude failed these requirements. Claude was not an attorney, and discussing legal issues with a nonlawyer platform did not create an attorney-client relationship. The communications were also not confidential because Heppner voluntarily transmitted information to a third-party AI provider whose privacy policy permitted the collection and retention of user inputs and outputs and allowed certain disclosures to third parties. The court further held that, even if Heppner entered information that he had originally received from counsel, any privilege was waived when he disclosed that information to the AI platform. The materials did not later become privileged merely because Heppner shared them with his attorneys. Finally, Heppner’s counsel did not direct him to use Claude. Although Heppner claimed that he created the materials to assist later discussions with counsel, the court focused on the purpose of the communications when they were made. Heppner independently sought assistance from Claude, which the provider expressly disclaimed providing formal legal advice. Work-Product Protection The work-product doctrine generally protects materials prepared by or at the direction of counsel in anticipation of litigation and is intended to safeguard an attorney’s mental impressions, legal theories and litigation strategy. Although Heppner created the documents while anticipating criminal charges, his attorneys did not direct him to use Claude. He acted independently, and the documents did not reflect counsel’s strategy when they were created. The fact that the materials may have later influenced counsel’s strategy was insufficient to establish work-product protection. The court did leave open the possibility that a different analysis could apply where counsel directs the use of an AI system and the technology functions as an agent assisting counsel. However, the court did not decide whether an AI platform could qualify as such an agent. Other Courts Take a Different Approach Shortly before Heppner, a federal court in Michigan reached a different result in Warner v. Gilbarco, Inc., 820 F. Supp. 3d 629 (E.D. Mich. 2026). There, the court held that a pro se plaintiff’s use of ChatGPT to assist with litigation preparation was protected work product. The Warner court emphasized that waiver of work-product protection differs from waiver of the attorney-client privilege. While disclosure to an ordinary third party may waive the attorney-client privilege, work product is generally waived only where disclosure is made to an adversary or in a manner that substantially increases the likelihood that an adversary will obtain the material. The court characterized ChatGPT as a tool rather than a person and concluded that compelling the plaintiff’s prompts and outputs would improperly expose her internal analysis and litigation thought process. The District of Colorado followed a similar approach in Morgan v. V2X, Inc., 2026 U.S. Dist. LEXIS 67939 (D. Colo. Mar. 30, 2026). The court held that a pro se litigant could assert work-product protection over AI-assisted litigation preparation because Federal Rule of Civil Procedure 26(b)(3) protects materials prepared by or for a party, not only materials prepared by counsel. The Morgan court distinguished Heppner because it arose in a criminal matter involving a represented defendant who acted independently of counsel. By contrast, a pro se litigant simultaneously acts as both party and advocate. The court nevertheless required the plaintiff to identify which AI tools he used and amended the protective order to restrict the use of confidential information in AI platforms lacking sufficient contractual protections. A New York state court reached a similar result in Assini v. Hayward, 2026 NYLJ LEXIS 916 (Sup. Ct. Nassau Cty. June 4, 2026). The court quashed a subpoena directed to OpenAI seeking a pro se defendant’s prompts, inputs, outputs and AI-assisted legal research. Relying on Morgan, the court found that the materials could qualify for protection as materials prepared in anticipation of litigation under CPLR 3101(d). The court, nevertheless, directed the litigant to comply with New York’s rules governing the use of AI in litigation. An Emerging Distinction Read together, these decisions suggest that courts may distinguish between attorney-client privilege and work-product protection when evaluating AI-assisted materials. The attorney-client privilege remains particularly vulnerable where confidential information is voluntarily entered into a publicly available AI platform. Because the platform is not an attorney and the information is disclosed to an outside provider, the traditional requirements of an attorney-client communication and confidentiality may be absent. The work-product analysis may be more flexible. Warner, Morgan and Assini indicate that some courts may protect AI-assisted research, drafting and analysis where the materials reflect a litigant’s own mental impressions and were created in anticipation of litigation, particularly where the user is proceeding pro se. However, courts may still require disclosure of the tools used, impose protective-order restrictions, and enforce local AI rules. Whether work-product protection will extend to a represented client using AI at counsel’s direction remains unresolved. The outcome may depend on who directed the work, the purpose of the AI use, whether the materials reflect counsel’s strategy, and whether the platform’s data practices create a meaningful risk of disclosure to an adversary. Considerations for Attorneys Using AI These decisions do not establish that every use of AI destroys privilege or that all AI-assisted materials are protected work products. Instead, they demonstrate that the analysis will depend on the nature of the protection asserted, the circumstances surrounding the AI use, and the forum where the case is heard. Law firms should evaluate whether an AI provider retains prompts, uses customer information for model training or permits disclosure to vendors, regulators, law enforcement or litigants. Where confidential information is involved, firms should consider enterprise or internally controlled systems with contractual confidentiality protections, limited retention, restricted data use, and appropriate access controls. Attorneys should also supervise AI-assisted litigation work and affirmatively direct its use where appropriate, rather than attempting to characterize a client’s independent AI activity as work product after the fact. Clients should be instructed not to enter attorney communications, case facts, witness information, or legal strategy into publicly available AI platforms without counsel’s approval. Summary Heppner, Warner, Morgan and Assini demonstrate that courts are beginning to apply traditional privilege and work-product principles differently depending on the context of the AI use. Heppner reflects a strict application of attorney-client privilege and work-product rules where a represented criminal defendant independently used a public AI platform. By contrast, Warner, Morgan and Assini reflect a greater willingness to protect the AI-assisted litigation preparation of pro se parties. For the legal community, the developing decisions highlight the need for clear AI policies, careful review of vendor privacy practices and direct client education. When confidential or litigation-related information is involved, AI use should be attorney-directed, limited to secure systems, and structured to preserve confidentiality and attorney work product. Even where substantive materials may be protected, courts may still require transparency concerning the tools used and impose restrictions on how confidential information is processed.

Isaac Netzer (Associate-New York, NY) will again serve as a faculty member for the National Business Institute (NBI) in conjunction with two rebroadcasts of the CLE webinar “Pleadings, Motions, and Briefs: AI Edition,” to be held on August 20, 2026, and October 27, 2026. Back by popular demand, Isaac’s program focuses on the practical use of artificial intelligence in litigation, including AI’s capabilities and limitations, ethical and confidentiality considerations, and real-world applications in drafting pleadings, motions, briefs, and conducting document review. The rebroadcasts of Isaac’s November 2025 NBI presentation will cover topics such as strategic prompt design, identifying AI blind spots, authority validation, and using AI to assess both one’s own filings and opposing counsel’s submissions, with Isaac hosting live Q&A sessions following the rebroadcasts. 

Jennifer Moran (Partner-Madison, NJ) authored the article “Golf Course Liability for Lightning: Nearly 30-Year-Old Standard Meets New Technology,” published in the July 28, 2026, edition of Law.com. The article explores how two high-profile lightning strikes at New Jersey golf courses in 2025 could reshape premises liability law for recreational facilities. Jennifer explains that the resulting litigation may prompt New Jersey courts to revisit the nearly 30-year-old Maussner v. Atlantic City Country Club decision and redefine what constitutes reasonable care considering modern weather-monitoring and lightning-detection technology. She examines the legal framework established in Maussner, analyzing how advances in real-time weather alerts, GPS-integrated warning systems, and smartphone technology may influence future duty-of-care determinations, and discusses how the pending litigation could affect golf course operators, insurers, and premises liability practitioners nationwide. The article also offers practical guidance on risk management, emphasizing the importance of implementing, documenting, and consistently enforcing weather-monitoring and evacuation protocols, with Jennifer noting, "The central lesson remains instructive: liability turns not on whether a course adopts any particular safety measure but on whether it implements the measures it does adopt with reasonable care."