Nicholas Owen McCann

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.

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

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.

Lori Semlies (Partner-White Plains, NY), cochair of Wilson Elser’s Medical Malpractice and Health Care Practice, was quoted in the article “Medical Malpractice Defense Costs Continue to Rise,” published on July 27, 2026, in Crittenden Medical Liability’s Insurance Industry News. The article examines how health care organizations are facing higher defense costs as litigation takes longer to resolve, expert witness fees continue to rise, and plaintiffs pursue increasingly aggressive legal strategies. Lori observes, “Plaintiffs are more aggressive than ever, and the courts are tougher than ever,” adding that “As a result, defendants must not only be more prepared to defend claims but also adopt more creative defense strategies and begin trial preparation earlier to account for changing jury dynamics, even in counties traditionally considered defense-friendly.” 

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.

Beth Golub (Partner-San Diego, CA) and Clara Roberts (Associate-San Diego, CA) prevailed on a demurrer to an amended complaint on behalf of a global technology company. The demurrer was sustained without leave to amend based upon successful arguments that the statute of limitations barred the first amended complaint. The plaintiff timely filed the original complaint, then voluntarily dismissed claims against the client while maintaining claims against a third-party codefendant.  Plaintiff argued that because they timely filed a motion for leave to file the amended complaint, the court had “approved” the dilatory amended complaint. The court sustained the demurrer without leave to amend because there is no reasonable possibility to cure such a defect.

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."

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. 

Kathleen Wilkinson (Senior Counsel–Philadelphia, PA) was able to convince the Pennsylvania Human Relations Commission (PHRC) that the firm's client, a homeowner’s association (HOA) board, had no knowledge that the plaintiffs had a disability when it considered their request for a pool in accordance with the Association's rules, which prohibited such installations. The Board nonethless worked with the plaintiffs in good faith to explore alternatives, including the installation of a small spa on a portion of the property. The PHRC ruled in favor of the HOA, awarding no compensation to the plaintiffs and ordering no further action by the Association.

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. 

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.

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

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.

Lori Semlies (Partner-White Plains, NY), cochair of Wilson Elser’s Medical Malpractice and Health Care Practice, was quoted in the article “Medical Malpractice Defense Costs Continue to Rise,” published on July 27, 2026, in Crittenden Medical Liability’s Insurance Industry News. The article examines how health care organizations are facing higher defense costs as litigation takes longer to resolve, expert witness fees continue to rise, and plaintiffs pursue increasingly aggressive legal strategies. Lori observes, “Plaintiffs are more aggressive than ever, and the courts are tougher than ever,” adding that “As a result, defendants must not only be more prepared to defend claims but also adopt more creative defense strategies and begin trial preparation earlier to account for changing jury dynamics, even in counties traditionally considered defense-friendly.” 

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.

Beth Golub (Partner-San Diego, CA) and Clara Roberts (Associate-San Diego, CA) prevailed on a demurrer to an amended complaint on behalf of a global technology company. The demurrer was sustained without leave to amend based upon successful arguments that the statute of limitations barred the first amended complaint. The plaintiff timely filed the original complaint, then voluntarily dismissed claims against the client while maintaining claims against a third-party codefendant.  Plaintiff argued that because they timely filed a motion for leave to file the amended complaint, the court had “approved” the dilatory amended complaint. The court sustained the demurrer without leave to amend because there is no reasonable possibility to cure such a defect.

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."

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. 

Kathleen Wilkinson (Senior Counsel–Philadelphia, PA) was able to convince the Pennsylvania Human Relations Commission (PHRC) that the firm's client, a homeowner’s association (HOA) board, had no knowledge that the plaintiffs had a disability when it considered their request for a pool in accordance with the Association's rules, which prohibited such installations. The Board nonethless worked with the plaintiffs in good faith to explore alternatives, including the installation of a small spa on a portion of the property. The PHRC ruled in favor of the HOA, awarding no compensation to the plaintiffs and ordering no further action by the Association.

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. 

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.

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

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.

Lori Semlies (Partner-White Plains, NY), cochair of Wilson Elser’s Medical Malpractice and Health Care Practice, was quoted in the article “Medical Malpractice Defense Costs Continue to Rise,” published on July 27, 2026, in Crittenden Medical Liability’s Insurance Industry News. The article examines how health care organizations are facing higher defense costs as litigation takes longer to resolve, expert witness fees continue to rise, and plaintiffs pursue increasingly aggressive legal strategies. Lori observes, “Plaintiffs are more aggressive than ever, and the courts are tougher than ever,” adding that “As a result, defendants must not only be more prepared to defend claims but also adopt more creative defense strategies and begin trial preparation earlier to account for changing jury dynamics, even in counties traditionally considered defense-friendly.” 

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.

Beth Golub (Partner-San Diego, CA) and Clara Roberts (Associate-San Diego, CA) prevailed on a demurrer to an amended complaint on behalf of a global technology company. The demurrer was sustained without leave to amend based upon successful arguments that the statute of limitations barred the first amended complaint. The plaintiff timely filed the original complaint, then voluntarily dismissed claims against the client while maintaining claims against a third-party codefendant.  Plaintiff argued that because they timely filed a motion for leave to file the amended complaint, the court had “approved” the dilatory amended complaint. The court sustained the demurrer without leave to amend because there is no reasonable possibility to cure such a defect.