Hunton Insurance Recovery Blog

A Feb. 17 federal court ruling has found that neither the attorney-client privilege nor work product protection apply to a criminal defendant’s self-directed prompts and large language model outputs.  In the ruling in USA v. Heppner, US District Judge Jed S. Rakoff ordered the production of 31 documents generated by the defendant using Anthropic’s Claude, notwithstanding that the defendant had incorporated information obtained from counsel and later shared the AI outputs with his attorneys. In a recent legal update, Hunton partner Meghan Podolny and associate Jessie Purtell discuss how the ruling provides early judicial guidance on privilege issues related to AI-generated materials, an area with limited existing case law.

Although the ruling occurred in a criminal proceeding, the reasoning should apply equally across all litigation.  The ruling could therefore have serious implications for policyholders in coverage litigation and mandates a cautionary approach to client-guided “research” using open ai models.

In a welcome win for defendants litigating claims under the Illinois Biometric Information Privacy Act (“BIPA”), earlier this month a Northern District of Illinois magistrate judge denied a plaintiff’s motion to compel communications between defendant Union Pacific Railroad Company (“Union Pacific”) and the vendors that provided it with fingerprint-activated security gates.  Fleury v. Union Pac. R.R. Co., No. 20 C 390, 2024 WL 1620613, at *4-6 (N.D. Ill. Apr. 15, 2024).  In so doing, the court implicitly affirmed that, in a BIPA lawsuit, the common interest doctrine presumptively protects the communications between biometric technology vendors and their customers, regardless of which entities are named as defendants.  This ruling is a powerful tool in the BIPA landscape for employers (who are typically the customers in this scenario) and other defendants alike because it supports the ability of BIPA defendants to coordinate their defense strategy with entities who share their legal interest.  The opinion is also a good reminder, however, that vendors and their customers should use best practices early on in a BIPA litigation to maximize the scope of the common interest doctrine.

Hunton Andrews Kurth LLP partner Syed Ahmad was quoted on July 20 in a Law360 article titled “R&W Insurance Claim Frequency Expected To Normalize.”  The article discussed the recent reduction in R&W claims and industry experts’ expectations that claim frequency will return to normal levels this year.  Mr. Ahmad commented on the challenges policyholders may face when disputing claims in court.  In particular, while there is plenty of case law regarding disputes between buyers and sellers over breaches of representations and warranties, there is very little precedent on how ...

After any merger or acquisition, disputes can arise regarding the accuracy of representations and warranties made by the seller to the buyer. In most transactions today, the buyer obtains representation and warranty insurance to cover the buyer for losses resulting from the seller’s breach of a representation or warranty. When an R&W policy provides coverage, a seller may attempt to offset its obligations to the buyer by amounts paid by the R&W insurer. Likewise, the R&W insurer may attempt offset against the damages paid by the seller to the buyer. But other legal and equitable ...