Jianlin Song

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."

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.

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 

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.

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."

Kimberly Sheehan (Of Counsel-White Plains, NY) and Lindsay Kalick (Partner-New York, NY) secured summary judgment in the New York State Supreme Court, Bronx County, on behalf of Wilson Elser’s client, a plumbing company, resulting in dismissal of all claims before any depositions were conducted. The 40-year-old plaintiff alleged he sustained serious injuries when his electric scooter hit a pothole near a Bronx intersection and sought significant damages for injuries requiring lumbar spine fusion and shoulder surgery. Our client plumbing company had performed underground road work more than 636 feet away from the alleged pothole three months prior to the date of the incident. The plaintiff sued the parent construction company, although the work was performed by our client. Kimberly and Lindsay moved for summary judgment, arguing that our client neither performed work at the accident location nor created the alleged roadway defect. They further argued that the court’s prior decision granting summary judgment to a codefendant on the same grounds constituted the “law of the case,” warranting the same result for our client. Their motion relied on an affirmation from the client’s representative attesting to the lack of any work performed at the accident location. While the motion was pending, the plaintiff sought to proceed with depositions, arguing that the motion was premature. Kimberly and Lindsay successfully opposed those efforts, and the court held that the pending summary judgment motion stayed discovery. The court ultimately rejected the plaintiff’s contention that additional discovery might uncover evidence sufficient to defeat the motion. In granting summary judgment, the court adopted the substantive arguments advanced by Wilson Elser, finding that: Our client established its prima facie entitlement to judgment through its representative’s affirmation, demonstrating that neither it nor its parent company performed work at the accident location and that its completed work was approximately 636.56 feet away. The plaintiff failed to raise a triable issue of fact, as speculation that our client’s work may have affected potholes two blocks away was insufficient. The plaintiff’s argument that the motion was premature was unavailing because the mere hope that future discovery might reveal supporting evidence does not justify denying summary judgment. The dismissal eliminated the client’s exposure to significant damages in the Bronx County venue.  

​Christopher Priore (Partner-Albany, NY)​ prevailed for the firm’s client, the New York State Department of Corrections and Community Supervision (DOCCS), before the New York State Appellate Division, Second Department, the court reversing the Queens County Supreme Court’s denial of our client’s motion for summary judgment in May 2024. The plaintiff, a former DOCCS employee, sued the State of New York and the DOCCS, alleging disability discrimination and retaliation under the New York State Human Rights Law. The plaintiff claimed our client failed to provide him with a reasonable accommodation, specifically light duty, and retaliated against him for filing a grievance over his termination. On appeal, Chris argued that the DOCCS had a legitimate, nondiscriminatory basis for termination and that the plaintiff could not show pretext. The record showed the plaintiff was documented as 66.67 percent disabled, while DOCCS policy requires an employee seeking light duty to be less than 50 percent disabled ‒ meaning accommodation would have required the agency to violate its own internal policy. The Appellate Division agreed in full. The court held that the plaintiff failed to raise a triable issue of fact as to pretext on either the discrimination or retaliation claims and further found that accommodation would have imposed an undue hardship on the DOCCS, given its internal policy requirements. The court unanimously reversed the lower court's order, granted summary judgment in DOCCS’s favor, dismissed the complaint in its entirety, and awarded costs.

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).

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. 

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. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 

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.

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.

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."

Kimberly Sheehan (Of Counsel-White Plains, NY) and Lindsay Kalick (Partner-New York, NY) secured summary judgment in the New York State Supreme Court, Bronx County, on behalf of Wilson Elser’s client, a plumbing company, resulting in dismissal of all claims before any depositions were conducted. The 40-year-old plaintiff alleged he sustained serious injuries when his electric scooter hit a pothole near a Bronx intersection and sought significant damages for injuries requiring lumbar spine fusion and shoulder surgery. Our client plumbing company had performed underground road work more than 636 feet away from the alleged pothole three months prior to the date of the incident. The plaintiff sued the parent construction company, although the work was performed by our client. Kimberly and Lindsay moved for summary judgment, arguing that our client neither performed work at the accident location nor created the alleged roadway defect. They further argued that the court’s prior decision granting summary judgment to a codefendant on the same grounds constituted the “law of the case,” warranting the same result for our client. Their motion relied on an affirmation from the client’s representative attesting to the lack of any work performed at the accident location. While the motion was pending, the plaintiff sought to proceed with depositions, arguing that the motion was premature. Kimberly and Lindsay successfully opposed those efforts, and the court held that the pending summary judgment motion stayed discovery. The court ultimately rejected the plaintiff’s contention that additional discovery might uncover evidence sufficient to defeat the motion. In granting summary judgment, the court adopted the substantive arguments advanced by Wilson Elser, finding that: Our client established its prima facie entitlement to judgment through its representative’s affirmation, demonstrating that neither it nor its parent company performed work at the accident location and that its completed work was approximately 636.56 feet away. The plaintiff failed to raise a triable issue of fact, as speculation that our client’s work may have affected potholes two blocks away was insufficient. The plaintiff’s argument that the motion was premature was unavailing because the mere hope that future discovery might reveal supporting evidence does not justify denying summary judgment. The dismissal eliminated the client’s exposure to significant damages in the Bronx County venue.  

​Christopher Priore (Partner-Albany, NY)​ prevailed for the firm’s client, the New York State Department of Corrections and Community Supervision (DOCCS), before the New York State Appellate Division, Second Department, the court reversing the Queens County Supreme Court’s denial of our client’s motion for summary judgment in May 2024. The plaintiff, a former DOCCS employee, sued the State of New York and the DOCCS, alleging disability discrimination and retaliation under the New York State Human Rights Law. The plaintiff claimed our client failed to provide him with a reasonable accommodation, specifically light duty, and retaliated against him for filing a grievance over his termination. On appeal, Chris argued that the DOCCS had a legitimate, nondiscriminatory basis for termination and that the plaintiff could not show pretext. The record showed the plaintiff was documented as 66.67 percent disabled, while DOCCS policy requires an employee seeking light duty to be less than 50 percent disabled ‒ meaning accommodation would have required the agency to violate its own internal policy. The Appellate Division agreed in full. The court held that the plaintiff failed to raise a triable issue of fact as to pretext on either the discrimination or retaliation claims and further found that accommodation would have imposed an undue hardship on the DOCCS, given its internal policy requirements. The court unanimously reversed the lower court's order, granted summary judgment in DOCCS’s favor, dismissed the complaint in its entirety, and awarded costs.

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).

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. 

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. 

Jonathan Meer (Partner-New York, NY) and Angela Sekerka (Of Counsel-New York, NY) will present the Wilson Elser Forum webinar “The Shifting Landscape of Fair Housing Law” on September 10, 2026. This webinar will provide a comprehensive overview of the ever-changing landscape of fair housing law, beginning with the foundation of the Fair Housing Act and the key issues involving fair housing discrimination nationwide. The Department of Housing and Urban Development (HUD) has been reworking its guidance across a range of fair housing issues, requiring providers to comply with new standards. As the new administration’s priorities continue to drive these changes, this presentation will explore how compliance with fair housing law is a moving target. It will examine challenges to what is considered reasonable accommodation and the use of criminal background checks in housing decisions. Additionally, the presentation will offer insight into emerging legislation on algorithmic rent-setting and source-of-income discrimination. The session will conclude with guidance on how providers should approach their housing policies and navigate the fluctuating laws of fair housing. 

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.

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.

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."

Kimberly Sheehan (Of Counsel-White Plains, NY) and Lindsay Kalick (Partner-New York, NY) secured summary judgment in the New York State Supreme Court, Bronx County, on behalf of Wilson Elser’s client, a plumbing company, resulting in dismissal of all claims before any depositions were conducted. The 40-year-old plaintiff alleged he sustained serious injuries when his electric scooter hit a pothole near a Bronx intersection and sought significant damages for injuries requiring lumbar spine fusion and shoulder surgery. Our client plumbing company had performed underground road work more than 636 feet away from the alleged pothole three months prior to the date of the incident. The plaintiff sued the parent construction company, although the work was performed by our client. Kimberly and Lindsay moved for summary judgment, arguing that our client neither performed work at the accident location nor created the alleged roadway defect. They further argued that the court’s prior decision granting summary judgment to a codefendant on the same grounds constituted the “law of the case,” warranting the same result for our client. Their motion relied on an affirmation from the client’s representative attesting to the lack of any work performed at the accident location. While the motion was pending, the plaintiff sought to proceed with depositions, arguing that the motion was premature. Kimberly and Lindsay successfully opposed those efforts, and the court held that the pending summary judgment motion stayed discovery. The court ultimately rejected the plaintiff’s contention that additional discovery might uncover evidence sufficient to defeat the motion. In granting summary judgment, the court adopted the substantive arguments advanced by Wilson Elser, finding that: Our client established its prima facie entitlement to judgment through its representative’s affirmation, demonstrating that neither it nor its parent company performed work at the accident location and that its completed work was approximately 636.56 feet away. The plaintiff failed to raise a triable issue of fact, as speculation that our client’s work may have affected potholes two blocks away was insufficient. The plaintiff’s argument that the motion was premature was unavailing because the mere hope that future discovery might reveal supporting evidence does not justify denying summary judgment. The dismissal eliminated the client’s exposure to significant damages in the Bronx County venue.