Erik J. Tomberg

Sarah Fink (Of Counsel-Long Island, NY) authored “Supreme Court Merges Two Types of Contributory IP Infringement into One,” appearing in the July 16, 2026, posting of Westlaw Today. The article examines two recent U.S. Supreme Court decisions ‒ Cox Communications v. Sony Music Entertainment and Hikma Pharmaceuticals USA Inc. v. Amarin Pharma ‒ that significantly impact the landscape of secondary copyright and patent infringement. In analyzing the decisions, Sarah explains how the court narrowed the scope of contributory liability by emphasizing that secondary infringement requires specific intent to encourage infringement. She notes, "The Cox holding is that contributory infringement cannot rest merely on providing a product capable of infringement; rather, liability depends on affirmative encouragement of infringing uses." She concludes that these decisions are likely to limit secondary IP liability in many contexts by reinforcing that intent ‒ not mere capability ‒is the touchstone of contributory infringement.

Keti Mebuke (Associate-Chicago, IL) and Nicole Gettler (Of Counsel-Detroit, MI) prevailed on their motion for summary disposition in Leelanau County Circuit Court, Michigan, on behalf of the firm’s property owner clients. The plaintiff sought injunctive relief through: (1) a quiet title action alleging that the description of a 12-foot-wide shared common driveway located between the parties, as referenced in the clients’ deed, constituted a cloud on the plaintiffs’ title; and (2) an order restricting our clients from using the driveway altogether, based on the plaintiffs’ contention that the easement did not benefit the clients’ parcel and, alternatively, that their use would overburden the easement. Keti and Nicole moved for summary disposition, arguing that the reference in the clients’ deed merely recognized the long-standing existence and use of the shared driveway and underlying easement, did not create a cloud on the plaintiffs’ title, and confirmed that the easement was appurtenant to the clients’ property, thereby permitting their use of the driveway without the restrictions sought by the plaintiffs. After the parties engaged in supplemental briefing and a two-hour oral argument, the court issued a 14-page written opinion granting summary disposition in favor of Wilson Elser’s clients with prejudice as to all counts.  

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Super Lawyers® has named six Wilson Elser attorneys to the 2026 Oregon Super Lawyers and Rising Stars™ lists: Super Lawyers Lloyd Bernstein (Partner) – Insurance Coverage Rising Stars Vanessa Aaron (Partner) – PI General: Plaintiff Elizabeth Elkington (Of Counsel) – Transportation/Maritime Dmitry Golosinskiy (Partner) – PI Products: Defense Sean McKean (Associate) – Insurance Coverage Ross Van Ness (Partner) – Business Litigation Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys who are 40 and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named to these lists.

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. 

Kimberly R. Silas (Of Counsel-New Orleans, LA) will present “Navigating Law School” for the Henry P. Julien, II Law Scholars Program, to be held July 27 ‒ 31, 2026, in New Orleans. Kimberly will return as a speaker for the fifth consecutive year, participating in the week-long program designed to help incoming law students from underrepresented backgrounds build the skills and confidence needed to succeed in law school. Sponsored by The Kullman Firm, Loyola University New Orleans College of Law, Tulane University College of Law, and Dillard University, the program honors Henry P. Julien, II, a civil rights and social justice advocate and the first African American shareholder with The Kullman Firm.

Maryan Alexander (Partner-Baltimore, MD) secured a favorable outcome on behalf of the firm’s client, who was being sued by Prince George's County over the tax liabilities of her former employer. The County sought to hold our client personally liable for unpaid personal property taxes owed by a Delaware limited liability company, on the theory that she was a “member” who wound up the LLC's affairs after its forfeiture by the Maryland State Department of Assessments and Taxation (SDAT). In reality, our client was merely an employee of a related entity, serving as a Finance Manager, and had no ownership interest, management authority, or control over the entity owing the personal property taxes.  Maryan filed a motion to dismiss, arguing that the court lacked personal jurisdiction over our client ‒ a Virginia resident whose only connection to Maryland was ministerial work performed in the scope of her employment ‒ under both Maryland's long-arm statute (CJ § 6-103) and the Due Process Clause. Maryan further argued that the complaint failed to state a claim because an employee whose name appears on an administrative SDAT Form 1 does not become a statutory “member” subject to fiduciary duties under the Maryland Corporations and Associations Article §§ 4A-904 and 4A-906. Following the filing of our motion, the plaintiff voluntarily dismissed the case, achieving a complete victory for our client without the need for further litigation. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-Chicago | New York, NY) coauthored “HUD Issues New Guidance on Emotional Support Animals Under the Fair Housing Act,” posted on the July 16, 2026, PLUS Blog. The article discusses the U.S. Department of Housing and Urban Development’s new enforcement guidance on assistance animals under the Fair Housing Act, which marks a significant shift by limiting disability-related housing accommodations to trained service animals and eliminating the longstanding presumption that emotional support animals (ESAs) must be accommodated.  Jon and Angela explain that while the guidance "resolves certain threshold questions," it also "leaves several critical issues open for housing providers," including how the new policy interacts with state and local ESA protections laws, whether breed and weight restrictions may once again apply to ESAs, the continued viability of private lawsuits, and the differing standards that remain under Section 504 of the Rehabilitation Act. The authors also examine the legal ramifications of the policy change, noting that "the practical implications for housing providers... cannot be overstated," making it essential for housing providers to understand what has changed ‒ and what hasn't.

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.

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Keti Mebuke (Associate-Chicago, IL) and Nicole Gettler (Of Counsel-Detroit, MI) prevailed on their motion for summary disposition in Leelanau County Circuit Court, Michigan, on behalf of the firm’s property owner clients. The plaintiff sought injunctive relief through: (1) a quiet title action alleging that the description of a 12-foot-wide shared common driveway located between the parties, as referenced in the clients’ deed, constituted a cloud on the plaintiffs’ title; and (2) an order restricting our clients from using the driveway altogether, based on the plaintiffs’ contention that the easement did not benefit the clients’ parcel and, alternatively, that their use would overburden the easement. Keti and Nicole moved for summary disposition, arguing that the reference in the clients’ deed merely recognized the long-standing existence and use of the shared driveway and underlying easement, did not create a cloud on the plaintiffs’ title, and confirmed that the easement was appurtenant to the clients’ property, thereby permitting their use of the driveway without the restrictions sought by the plaintiffs. After the parties engaged in supplemental briefing and a two-hour oral argument, the court issued a 14-page written opinion granting summary disposition in favor of Wilson Elser’s clients with prejudice as to all counts.  

Sarah Fink (Of Counsel-Long Island, NY) authored “Supreme Court Merges Two Types of Contributory IP Infringement into One,” appearing in the July 16, 2026, posting of Westlaw Today. The article examines two recent U.S. Supreme Court decisions ‒ Cox Communications v. Sony Music Entertainment and Hikma Pharmaceuticals USA Inc. v. Amarin Pharma ‒ that significantly impact the landscape of secondary copyright and patent infringement. In analyzing the decisions, Sarah explains how the court narrowed the scope of contributory liability by emphasizing that secondary infringement requires specific intent to encourage infringement. She notes, "The Cox holding is that contributory infringement cannot rest merely on providing a product capable of infringement; rather, liability depends on affirmative encouragement of infringing uses." She concludes that these decisions are likely to limit secondary IP liability in many contexts by reinforcing that intent ‒ not mere capability ‒is the touchstone of contributory infringement.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Super Lawyers® has named six Wilson Elser attorneys to the 2026 Oregon Super Lawyers and Rising Stars™ lists: Super Lawyers Lloyd Bernstein (Partner) – Insurance Coverage Rising Stars Vanessa Aaron (Partner) – PI General: Plaintiff Elizabeth Elkington (Of Counsel) – Transportation/Maritime Dmitry Golosinskiy (Partner) – PI Products: Defense Sean McKean (Associate) – Insurance Coverage Ross Van Ness (Partner) – Business Litigation Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys who are 40 and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named to these lists.

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. 

Kimberly R. Silas (Of Counsel-New Orleans, LA) will present “Navigating Law School” for the Henry P. Julien, II Law Scholars Program, to be held July 27 ‒ 31, 2026, in New Orleans. Kimberly will return as a speaker for the fifth consecutive year, participating in the week-long program designed to help incoming law students from underrepresented backgrounds build the skills and confidence needed to succeed in law school. Sponsored by The Kullman Firm, Loyola University New Orleans College of Law, Tulane University College of Law, and Dillard University, the program honors Henry P. Julien, II, a civil rights and social justice advocate and the first African American shareholder with The Kullman Firm.

Maryan Alexander (Partner-Baltimore, MD) secured a favorable outcome on behalf of the firm’s client, who was being sued by Prince George's County over the tax liabilities of her former employer. The County sought to hold our client personally liable for unpaid personal property taxes owed by a Delaware limited liability company, on the theory that she was a “member” who wound up the LLC's affairs after its forfeiture by the Maryland State Department of Assessments and Taxation (SDAT). In reality, our client was merely an employee of a related entity, serving as a Finance Manager, and had no ownership interest, management authority, or control over the entity owing the personal property taxes.  Maryan filed a motion to dismiss, arguing that the court lacked personal jurisdiction over our client ‒ a Virginia resident whose only connection to Maryland was ministerial work performed in the scope of her employment ‒ under both Maryland's long-arm statute (CJ § 6-103) and the Due Process Clause. Maryan further argued that the complaint failed to state a claim because an employee whose name appears on an administrative SDAT Form 1 does not become a statutory “member” subject to fiduciary duties under the Maryland Corporations and Associations Article §§ 4A-904 and 4A-906. Following the filing of our motion, the plaintiff voluntarily dismissed the case, achieving a complete victory for our client without the need for further litigation. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-Chicago | New York, NY) coauthored “HUD Issues New Guidance on Emotional Support Animals Under the Fair Housing Act,” posted on the July 16, 2026, PLUS Blog. The article discusses the U.S. Department of Housing and Urban Development’s new enforcement guidance on assistance animals under the Fair Housing Act, which marks a significant shift by limiting disability-related housing accommodations to trained service animals and eliminating the longstanding presumption that emotional support animals (ESAs) must be accommodated.  Jon and Angela explain that while the guidance "resolves certain threshold questions," it also "leaves several critical issues open for housing providers," including how the new policy interacts with state and local ESA protections laws, whether breed and weight restrictions may once again apply to ESAs, the continued viability of private lawsuits, and the differing standards that remain under Section 504 of the Rehabilitation Act. The authors also examine the legal ramifications of the policy change, noting that "the practical implications for housing providers... cannot be overstated," making it essential for housing providers to understand what has changed ‒ and what hasn't.

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.

Maryan Alexander (Partner-Baltimore, MD) will present the webinar “Litigation Management 101” as part of CLM’s 2026 Insurance 101 Webinar Series, Building a Strong Foundation in Insurance Fundamentals, to be held on July 29, 2026. Maryan’s session provides a high-level overview of the litigation process and the claims professional’s role in managing outside counsel, budgets, and case strategy. Participants will gain insight into key litigation milestones, reporting expectations, and effective collaboration with defense counsel. Ideal for those newer to litigation oversight, this session emphasizes proactive management practices that support strong outcomes and cost control.

Keti Mebuke (Associate-Chicago, IL) and Nicole Gettler (Of Counsel-Detroit, MI) prevailed on their motion for summary disposition in Leelanau County Circuit Court, Michigan, on behalf of the firm’s property owner clients. The plaintiff sought injunctive relief through: (1) a quiet title action alleging that the description of a 12-foot-wide shared common driveway located between the parties, as referenced in the clients’ deed, constituted a cloud on the plaintiffs’ title; and (2) an order restricting our clients from using the driveway altogether, based on the plaintiffs’ contention that the easement did not benefit the clients’ parcel and, alternatively, that their use would overburden the easement. Keti and Nicole moved for summary disposition, arguing that the reference in the clients’ deed merely recognized the long-standing existence and use of the shared driveway and underlying easement, did not create a cloud on the plaintiffs’ title, and confirmed that the easement was appurtenant to the clients’ property, thereby permitting their use of the driveway without the restrictions sought by the plaintiffs. After the parties engaged in supplemental briefing and a two-hour oral argument, the court issued a 14-page written opinion granting summary disposition in favor of Wilson Elser’s clients with prejudice as to all counts.  

Sarah Fink (Of Counsel-Long Island, NY) authored “Supreme Court Merges Two Types of Contributory IP Infringement into One,” appearing in the July 16, 2026, posting of Westlaw Today. The article examines two recent U.S. Supreme Court decisions ‒ Cox Communications v. Sony Music Entertainment and Hikma Pharmaceuticals USA Inc. v. Amarin Pharma ‒ that significantly impact the landscape of secondary copyright and patent infringement. In analyzing the decisions, Sarah explains how the court narrowed the scope of contributory liability by emphasizing that secondary infringement requires specific intent to encourage infringement. She notes, "The Cox holding is that contributory infringement cannot rest merely on providing a product capable of infringement; rather, liability depends on affirmative encouragement of infringing uses." She concludes that these decisions are likely to limit secondary IP liability in many contexts by reinforcing that intent ‒ not mere capability ‒is the touchstone of contributory infringement.

Peter Espey (Of Counsel-Madison, NJ) was quoted extensively in the article “Are Confidentiality Requests on the Rise in NJ? Attorneys Debate What’s at Stake,” appearing in the July 14, 2026, edition of Law.com’s New Jersey Law Journal. The article examines whether confidentiality provisions in settlement agreements are becoming more common in medical malpractice and other civil litigation. It features perspectives from both plaintiff and defense attorneys on the role of confidential settlements, their impact on transparency, and the factors that influence whether parties seek to keep settlement terms private. Peter notes that, in his experience, confidentiality provisions have long been a common part of settlements and that he has not observed a meaningful increase in their use. He also emphasizes that confidential settlements do not undermine public protection because malpractice settlements are reported to the National Practitioner Data Bank and may also be reviewed by state medical boards. "There are lots of defensible cases that can get settled for lots of different reasons," Peter said. "Just because a case settles, most of the agreements say there's no admission of liability ‒ and there's truth to that."

Super Lawyers® has named six Wilson Elser attorneys to the 2026 Oregon Super Lawyers and Rising Stars™ lists: Super Lawyers Lloyd Bernstein (Partner) – Insurance Coverage Rising Stars Vanessa Aaron (Partner) – PI General: Plaintiff Elizabeth Elkington (Of Counsel) – Transportation/Maritime Dmitry Golosinskiy (Partner) – PI Products: Defense Sean McKean (Associate) – Insurance Coverage Ross Van Ness (Partner) – Business Litigation Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys who are 40 and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named to these lists.

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.