Building the Future by Understanding the Past: ABA Forum on Construction Law’s 50th Anniversary Conference

4 minute read

As a litigator, I think of disputes in part as an exercise in competitive storytelling—you have to articulate the “why” so that a decisionmaker not only concludes you are correct, but feels it is a just outcome. The ABA Forum on Construction Law celebrated its 50th anniversary at its 2026 Annual Meeting in Chicago last month, and one of the presentations I most enjoyed was “Learning by Doing: A Survey of the Most Significant Construction Projects of the Last 50 Years and What They Taught Us,” presented by Phillip G. Bernstein (Yale School of Architecture), Charles F. Boland (Greyhawk), and Chris Noble (Noble, Wickersham & Heart, LLP). The speakers walked the audience through the most consequential projects of the past half century and the forces that drove them—technology, evolving standards of care, modular construction, sustainability, new delivery models, globalization, and the rise of mega-projects. The stories of these buildings and the speakers’ observations provide key insights for construction lawyers and their clients.

Technology and Digitization

The first major change is the technology used to design. As recently as the 1970s, drawings were hand-drafted, calculations relied on slide rules, and documents traveled by mail. The presenters trace the digital revolution through three projects: Frank Gehry’s Barcelona Fish (1992), where aerospace software was first adapted to architectural geometry; the Walt Disney Concert Hall (2003), which proved that computer modeling could translate radical forms into fabrication drawings; and One World Trade Center (2004), where full Building Information Modeling (“BIM”) models validated the technology for the largest and most complex projects. For construction lawyers, BIM models, clash detection logs, and digital coordination records are could be essential evidence in delay and defect disputes—and the failure to use these tools may increasingly bear on the standard of care.

The Standard of Care: Learning from Near-Disasters

One of the more gripping sections of the presentation involved two 1970s skyscrapers that nearly failed. Boston’s John Hancock Tower suffered mass glass panel failures, dangerous sway, and a structural vulnerability requiring the secret installation of 1,500 tons of steel bracing. New York’s Citicorp Center faced a worse scenario: an engineering student’s inquiry revealed that unconsidered wind loads and unauthorized field changes to steel connections left the occupied tower at risk of collapse, prompting emergency nighttime repairs hidden from public view for years. Neither building was out of compliance with the codes applicable at the time, and both led to reformed building codes and more rigorous wind analysis requirements. They remind us that the standard of care is measured against prevailing practice at the time—and that prevailing practice is sometimes found wanting only after a crisis.

Modular Construction

Modular construction has evolved from a niche technique into a mainstream strategy for complex buildings and industrial facilities. Brooklyn’s B2 Tower used roughly 930 prefabricated modules but encountered significant delays, serving as both proof of concept and cautionary tale. Contracts for modular projects must address how risk shifts from field labor to fabrication, transportation, and integration.

Sustainability and Mass Timber

The speakers traced sustainability from the energy codes of the late 1970s through today’s certification systems like LEED, giving particular attention to mass timber. Minneapolis’s T3 building (2016)—a seven-story office using glulam and nail-laminated timber—demonstrated the commercial viability of engineered wood, and recent IBC amendments now permit mass timber buildings up to 18 stories.

Delivery Models, Globalization, and Mega-Projects

The final portion of the presentation covered the rise of Design-Build and the emergence of Integrated Project Delivery, plus the globalization of supply chains. In 1996, the federal government lifted the prohibition on Design-Build projects, which led to the Pentagon renovation project being the largest federal Design-Build project in Washington D.C., and possibly the country. Per the Design-Build Institute of America, nearly half of all construction spending will be on Design-Build projects by 2028. Integrated Project Delivery binds owners, designers, and contractors into a single multi-party contract that shares risks and ties compensation to the success of the overall project. IPD requires a culture shift, however, away from the competitive low-bid processes familiar to many. One of the first IPD projects, the Fairfield Medical Office Building in California, allegedly involved mutual open books, a combined contingency, and joint responsibility for construction errors and design omissions. The speakers described the project as a success and a model for larger projects for the same owner. The presenters also discussed globalization as demonstrated by Apple Park, where custom glass was shipped from Germany through the Panama Canal and carbon-fiber roof panels were fabricated in Dubai. The presentation closed with mega-projects like the Big Dig and Hudson Yards. Each of these trends carries distinct legal implications: IPD’s shared-risk agreements demand a level of contractual transparency that differ greatly from current industry norms. Globalized supply chains introduce jurisdictional, tariff, and logistics risks that should be addressed during contracting. Mega-projects are by definition highly complex, though private mega-projects tend to achieve tighter cost and schedule outcomes than public ones.

Looking Ahead

I left this session a better construction lawyer. Bernstein, Boland, and Noble reminded me that every project has a story—and understanding that story is what separates the lawyer who can explain what happened from the one who can explain why it matters. The trends they identified—digitization, modularization, sustainability, evolving delivery models—are accelerating, and the legal frameworks governing construction must keep pace. But the constant across all fifty years of projects they surveyed is that the best outcomes belong to the people who understand not just the contract, but the building—how it was conceived, how it was built, and what it was meant to accomplish. Sessions like this one are a reminder that construction law is practiced at the intersection of law and real-world outcomes.

Russ Pearlman Quoted in The New York Times on AI and Copyright Challenges

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Russ Pearlman, a member of Carrington Coleman’s AI governance team, was recently quoted in The New York Times discussing how advances in artificial intelligence are challenging traditional assumptions underlying copyright law. In the article, Russ noted, “What happened with the Claude Code leak is essentially a preview of what’s coming for every creative industry,” highlighting how AI’s speed and capabilities are creating new legal questions around ownership, authorship, and intellectual property.

To read the full article, click here. Subscription required.

$25-Million Supersedeas Cap Applies Per Judgment Debtor, Not Per Judgment, Not Per Bond

2 minute read

In re Greystar Development & Construction, L.P.
Supreme Court of Texas, No. 24-0293 (May 22, 2026)
Opinion by Justice Busby (linked here), Dissent by Justice Huddle (linked here)

Texas Civil Practice & Remedies Code § 52.006(b), which deals with bonds and other security posted to supersede a judgment pending appeal, says, “Notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of: (1) 50 percent of the judgment debtor’s net worth; or (2) $25 million.” But does the $25-million cap in (b)(2) apply per judgment or per judgment-debtor or per bond? In a 5-4 decision—with both the majority and dissent insisting they were “[h]ewing to the text,” “[a]pplying the statute’s plain language,” “adher[ing] to the words the Legislature chose”—the Supreme Court of Texas held that the $25-million statutory cap applies per judgment-debtor.

Three Greystar affiliates were held jointly and severally liable for $360 million in a lawsuit arising from a construction-crane accident. Relying on § 52.006(b)(2), they posted one joint bond in the amount of $25 million and noticed their appeals. Plaintiffs moved for review of the bond, arguing it was insufficient as a matter of law because the $25-million cap of § 52.006(b)(2) applied to each judgment debtor individually, not collectively. The trial court agreed, and the Dallas Court of Appeals affirmed.

The Greystar entities sought relief in the Supreme Court by mandamus, pursuant to Tex. R. App. P. 24.4(a). But by the narrowest of margins, the Supreme Court agreed with the lower courts. The majority drew heavily on the singular, per-debtor formulation of the definition of “security” in § 52.001: “‘security’ means a bond or deposit posted … by a judgment debtor to suspend execution of the judgment ….” Substituting that definition for the word “security” in § 52.006(b), the majority argued, demonstrates legislative intent that the cap be applied on a per-debtor basis: “the amount of [a bond or deposit posted … by a judgment debtor to suspend execution of the judgment] must not exceed … $25 million.” Further, the majority said, interpreting the $25-million cap to apply on a per-debtor basis is consistent with the explicitly per-debtor alternative standard of § 52.006(b)(1)—capping the required security at “50 percent of the judgment debtor’s net worth.” And it aligns with other aspects of appellate practice, such as the requirement that each party seeking to avoid a judgment file its own appeal. Finally, the majority noted anomalies that could arise from not applying the cap on a per-debtor basis when a judgment is affirmed with respect to fewer than all defendants.

The dissent wasn’t buying it. The language of the statute, the dissent argued, unambiguously applies the $25-million cap not on a per-debtor or per-judgment basis, but on a per-bond basis. The dissent recounted Texas’s long history of allowing appealing parties to file one joint bond to supersede a judgment pending appeal and the Legislature’s presumed awareness of that practice. The Legislature, the dissent contended, made no distinction in § 52.006(b) between a bond filed by an individual judgment debtor and a joint bond filed by multiple debtors. So where, as here, defendants who are jointly and severally liable under a judgment seek to supersede that judgment on appeal with one joint bond, the plain language of the statute says the “amount of [that] security,” that bond, is capped at $25 million.

Unless the Legislature amends § 52.006(b) to explicitly say otherwise, however, the $25-million cap will be applied on a per-debtor basis, as interpreted by the majority.

Trial Court’s Failure to Hold a Hearing on TCPA Motion ≠ Denial by Operation of Law

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Swicegood v. Clemishire

Dallas Court of Appeals, No. 05-26-00159-CV (May 20, 2026)

Chief Justice Koch (Opinion linked here) and Justices Goldstein and Garcia

The hearing on a TCPA motion to dismiss ordinarily must be held within 60 days after the motion is served, and the trial court must rule within 30 days after the hearing. Tex. Civ. Prac. & Rem. Code §§ 27.004, 27.005(a). If the trial court doesn’t timely rule, the motion is deemed denied by operation of law and the movant may immediately appeal. Id. §§ 27.005(a), 27.008(a). But failure to timely hold a hearing is not the same as failure to timely rule.

Here, the trial court did not conduct a hearing on Swicegood’s TCPA motion to dismiss within the prescribed 60-day period. Swicegood appealed, equating that failure to hold a timely hearing with a failure to rule, which would result in the motion being denied by operation of law and give rise to a right of appeal. The Dallas Court dismissed the appeal for want of jurisdiction. “Without a hearing,” the Court explained, “the deadline for the trial court to rule on a motion to dismiss is never triggered, and no denial by operation of law can occur.” Therefore, the Court held, “because appellant’s dismissal motion was not heard, it was not denied by operation of law, and no basis for an appeal exists.” In so ruling the Court followed its earlier decision in Braun v. Gordon, No. 05-17-00176-CV, 2017 WL 4250235 (Tex. App.—Dallas Sept. 26, 2017, no pet.), in which it cautioned litigants that it is the TCPA movant’s “responsibility to obtain a timely hearing on the motion to dismiss.”

Carrington Coleman Adds Tech Law Expertise with Addition of Kate Morris, Russ Pearlman

2 minute read

Attorneys bring significant AI expertise to firm’s Dallas office

DALLAS – Carrington Coleman has expanded its technology and innovation practices with the addition of attorneys Kate Morris and Russ Pearlman.

“Kate and Russ are leaders in the practice of AI, data, and technology law,” said Carrington Coleman Managing Partner Monica Latin. “Their arrival strengthens our ability to help clients across industries navigate rapidly evolving issues in AI governance, privacy, cybersecurity, and technology transactions, reflecting our commitment to stay at the forefront of innovation.”

Ms. Morris and Mr. Pearlman join Carrington Coleman from Hosch & Morris, PLLC. The firm announced its closure effective April 15, following the disappearance of its co-founding partner, Charles M. Hosch.

“The circumstances are bittersweet, but we look forward to our next chapter, practicing with the exceptional attorneys and leadership of Carrington Coleman,” said Ms. Morris. “This is a firm we have both admired, not only for the work they do but also for the principled way they approach the law and the genuine camaraderie among colleagues.”

With a practice rooted in the intersection of law, data, and technology, Ms. Morris works closely with a wide range of clients to identify and anticipate their specialized needs related to AI governance and strategy, data law, privacy, cybersecurity, commercial technology transactions, and information governance.

Her work focuses on regulated and sensitive data, from personal information governed by U.S. and E.U. privacy frameworks to financial data, trade secrets, proprietary business information, export-controlled technical data, protected health information, and critical infrastructure information.

Ms. Morris is a Privacy Law Specialist (PLS), certified by the International Association of Privacy Professionals and recognized by the Texas Board of Legal Specialization, and holds additional certifications from the IAPP, including CIPP/US, CIPP/E, and CIPM. A frequent speaker and author on data privacy, cybersecurity, AI, and legal ethics, she has been recognized among the state’s Top Women Attorneys by Texas Super Lawyers and the Best Lawyers in Dallas by D Magazine.

Mr. Pearlman’s practice focuses on assisting professional services, media, and technology clients in transactional, AI governance, cybersecurity, and data privacy matters.

In addition to his legal practice, he is the Chief Information Officer for Dallas College, where he oversees enterprise technology strategy, major vendor relationships, and institutional regulatory compliance. In this role, he has developed AI policy aligned with the Texas Responsible AI Governance Act and led complex, high-stakes technology implementation, keeping him grounded in the realities facing clients.

Mr. Pearlman holds a master’s degree in AI from Washington University in St. Louis and speaks regularly on AI and data issues at legal and technology conferences. His 2018 law review article on AI authorship and inventorship has been cited more than 100 times, referenced in amicus briefs submitted to the U.S. Supreme Court, and submitted to the U.S. Patent and Trademark Office during formal comment periods on AI policy.

Avoiding Potential Construction Pitfalls in the Texas Property Code – Part 1: Project Completion

3 minute read

 Written by Tyler Wright, Associate 


This is the first in a multi-part blog series addressing
potential pitfalls that project owners, contractors, subcontractors, and
project financers may encounter on Texas construction projects. Texas
mechanics’ lien laws have long been some of the most complex lien laws in the
country, and Chapter 53 of the Texas Property Code, as many know by now, was substantively
amended for the first time in decades for projects beginning in 2022. Rather
than rehashing those amendments, this blog series highlights some of the lesser
known (or lesser followed) provisions of the Texas Property Code that still can
catch unwary parties off guard, and illustrates how proactive measures on the
front end of a project can mitigate disputes later.

This first post recaps the two primary subcontractor notices that
must be provided before claiming a lien and that remain applicable after the
Chapter 53 amendments. Then it addresses project completion, including scenarios
involving termination of the contract or abandonment by the original
contractor.   

Subcontractor Notices. To preserve their lien rights, subcontractors must provide two
key notices before claiming a lien under the Texas Property Code. Unpaid Claim
notices under Section 53.056 must be sent by the 15th of the third month for
every month a subcontractor works on a commercial project. Retainage Notices under
Section 53.057 must be sent within 30 days after the subcontractor completes all
of its work on the project, though they also may be included with Unpaid Claim
Notices. This timing inconsistency can create a trap for both owners and
subcontractors during the closing months of a project. 

Affidavit of Completion. When the project is complete, the owner may file an
Affidavit of Completion to establish prima facie evidence of the completion date,
which governs lien claim deadlines. The owner must file the Affidavit within 10
days of completion; otherwise, the filing date itself becomes the prima facie completion
date. The owner must then send a copy of the Affidavit to any subcontractor
that has already provided an Unpaid Claim Notice or a Retainage Notice, within
3 days of filing and within 10 days of any subsequent notice. For any subcontractor
that previously requested notice of completion, the owner must send a copy of
the Affidavit within 10 days of the request, or by the filing date, whichever
is later.

A savvy subcontractor often will include a request for notice
of project completion within an Unpaid Claim Notice or Retainage Notice. It is
important for owners to note, therefore, if a subcontractor’s request was made
at least 10 days before the Affidavit’s filing, the copy must be sent on the filing
date, not within 3 days after. Failure to send the copy of the Affidavit by the
applicable deadline causes the owner to lose the benefit of prima facie
evidence of the completion date as to the unnotified subcontractor.

Notice of Termination and Contractor Abandonment. If the owner terminates the
contract or the original contractor abandons the project, the owner must notify
each subcontractor within 10 days that requested notice of termination or
abandonment. The owner also must send notice to each subcontractor that
previously sent an Unpaid Claim Notice or Retainage Notice, regardless of
whether the subcontractor specifically included a request for notice of
termination or abandonment. If the owner fails to provide notice, the affected subcontractor
is excused from the Retainage Notice requirement and may file its lien for
retainage by the 15th of the third month after the project is completed or
abandoned, without prior notice.  

Why this Matters: Owner’s Obligation to Withhold Retainage. The owner’s notice obligations
matter because they directly affect the owner’s duty to withhold retainage
under Chapter 53 and provide certainty releasing retainage and closing out the
project. The Property Code requires an owner to withhold retainage only for 30
days after the project’s completion, termination, or abandonment, but an owner
might be wise to withhold retainage for at least 30 days. Because the
statute permits subcontractors to include Retainage Notices in Unpaid Claim
Notices, which are not due until the 15th of the third month, an inherent
timing conflict arises at the end of the project between the required 30-day
retainage withholding period and the later Unpaid Claim Notice deadline.

To mitigate this conflict, subcontractors should promptly
provide Retainage Notices upon completing their work, and owners should be
diligent in sending the copy of the Affidavit of Completion and any notice of
termination or abandonment. Additional mitigation efforts available to owners,
such as conditions precedent to payment, will be discussed later in this blog
series.       

Carrington Coleman Expands Family Law Practice with Addition of Two Attorneys

2 minute read

Two Board-Certified Family Law Partners Join Dallas Firm

DALLAS — Carrington Coleman announces the addition of two family law partners: Cynthia Dunn Raibourn and Laura Caston.

“We are thrilled to welcome Cynthia and Laura to Carrington Coleman. Their combined decades of experience in family law is a wonderful complement to our family law practice group and to our firm as we serve clients in many aspects of their professional and personal lives,” says Managing Partner Monica Latin.

Cynthia brings more than 31 years of exclusive family law experience to Carrington Coleman. She is Board Certified in Family Law by the Texas Board of Legal Specialization, trained in Collaborative Family Law, and has represented clients in State District, Family District, and Appellate Courts across Texas. Her practice encompasses all matters affecting children and families, including divorce, custody, child support, paternity, termination and adoption proceedings, pre- and post-nuptial agreements, enforcement, and modification of Texas and out-of-state orders. Cynthia has been recognized as a Texas Super Lawyer and is a member of the Annette Stewart American Inn of Court. She is active in the Dallas Bar Association Family Law Section, the Irving Bar Association, the Collin County Women’s Lawyers Association, and the Tarrant County Family Law Bar Association. She earned her J.D. from the University of Texas School of Law in 1994 and her B.A. from Louisiana State University in 1991, cum laude.

Laura’s practice is focused on complex family law matters, including high net worth divorce, intricate property division, contested custody, adoption and termination suits, enforcement and modification proceedings, and family law appeals. She is Board Certified in Family Law by the Texas Board of Legal Specialization and has been recognized as a Texas Rising Star, Best Lawyers “Ones to Watch” in America, and was featured in D Magazine’s 2025 Best Lawyers in Dallas. She is a prolific author and speaker on family law topics, having published in DBA Headnotes and the State Bar of Texas Family Law Section Report, and presented at the DBA Ethics Fest, State Bar of Texas programs, and other professional forums. Laura is a member of the Dallas Bar Association Family Law Section and Legal Ethics Committee and is active in the Richardson Chamber of Commerce and several community organizations. She earned her J.D. from Southern Methodist University in 2014 and her B.S. from the University of Texas at Austin in 2011.

Client Alert: Texas Fiduciaries and Digital Assets — Access for Executors and Trustees

3 minute read

Texas has enacted a comprehensive statutory framework governing fiduciary access to a decedent’s or settlor’s “digital assets.” This framework is designed to balance estate and trust administration needs with user privacy, federal law, and service‑provider policies. In practice, Texas’ enactment of the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) governs how fiduciaries may obtain records such as emails, cloud files, photos, social‑media content, cryptocurrency, domain names, and online financial records. The statute draws a sharp distinction between the catalogue of assets and the “content” of electronic communications, and it establishes a clear priority‑of‑instructions regime for determining the user’s intent.

Under RUFADAA, a user’s directions given through an online tool provided by a custodian take precedence. Examples include custodian‑provided legacy‑contact designations or inactive‑account‑manager settings that expressly authorize or restrict disclosure. If no online tool applies, the governing instrument (i.e., Last Will and Testament, Trust Agreement, or Power of Attorney) controls next. Affirmative language authorizing fiduciary access to digital assets is critical. Absent either an operative online tool or governing‑instrument provision, the custodian’s terms‑of‑service may significantly limit disclosure.

The distinction between content and non‑content data is foundational. Content such as the body of emails or direct messages generally requires the user’s affirmative, express consent before a custodian may disclose it to a fiduciary. Non‑content records, which are often described as a “catalog” of communications or metadata, may be accessible under a lower threshold, enabling a fiduciary to identify accounts, dates, and recipients without revealing message substance. This distinction reflects federal privacy laws and aims to balance estate administration needs with confidentiality.

Custodians typically require specified formalities to invoke RUFADAA. Common requirements include a written request specifically identifying the account, a death certificate, and evidence of authority (e.g., letters testamentary or of administration, or a Certificate of Trust). Where content is sought, the fiduciary will also typically need the user’s express consent. Custodians may limit disclosure to what is reasonably necessary, provide partial access, or deliver a download or account archive rather than credentials, and they may impose reasonable administrative charges.

For estate planners, proactive drafting remains the most effective tool. Wills, trusts, and powers of attorney should include explicit authorization for fiduciaries to access, manage, and dispose of digital assets, with separate, unequivocal consent to obtain the content of electronic communications. Clients are encouraged to maintain an up‑to‑date inventory of key digital accounts and use provider tools to designate legacy contacts or post‑death preferences. Password managers can aid continuity but should be used with caution. Remember, there’s no database for your fiduciaries to search for your digital assets.

Fiduciaries administering estates and trusts should act promptly to secure digital assets before they are deleted or accounts deactivated under provider policies. They should document their legal authority, tailor requests to the specific data categories needed, and be prepared to demonstrate user consent where required. Special care is warranted for assets with intrinsic value or transfer mechanics, such as cryptocurrency wallets, monetized online accounts, and domain registrations.

In summary, Texas law facilitates fiduciary access while preserving privacy and honoring user intent. With careful planning and precise, well‑supported requests, executors,  trustees, and attorneys-in-fact can navigate these issues effectively and lawfully.

Key Takeaways for Clients

  1. Update your estate planning documents. Ensure your Will, Trust, and Power of Attorney include explicit language authorizing fiduciary access to digital assets — and separate, express consent for disclosure of electronic communication content.
  2. Create and maintain a digital asset inventory. Keep a current list of your key digital accounts (usernames, passwords, and security question answers) and use each provider’s legacy-contact or inactive-account tools to designate post-death preferences.
  3. Act quickly after a death or incapacity. Fiduciaries should move promptly to identify and secure digital assets before custodians take action making it more difficult, or impossible, to access.

Thirty-three Carrington Coleman Attorneys Selected to Texas Super Lawyers

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Thirty-three Carrington Coleman attorneys have been named to the 2026 edition of Texas Super Lawyers — spanning both the Super Lawyers and Rising Stars designations across a wide range of practice areas.

Managing Partner Monica Latin earned four distinctions this year: Top 5 in Business Litigation statewide, Top 100 attorneys in Dallas-Fort Worth, Top 50 female attorneys in Texas, and Top 100 attorneys in Texas. Construction Litigation Partner Cathy Altman received three honors beyond her core Super Lawyers selection — Top 50 female attorneys in Texas, Top 100 in Dallas-Fort Worth, and Top 100 in Texas.

Texas Super Lawyers recognizes the top 5% of attorneys in the state annually. Rising Stars — a separate designation — honors the top 2.5% of attorneys who are either under 40 or have been practicing law for 10 years or less. Both lists are determined through a multiphase process combining peer nominations, independent research, and attorney evaluations.

2026 Texas Super Lawyers

  • Cathy Altman, Construction Litigation
  • Christopher Anaya, Construction Litigation
  • Katie Anderson, Schools & Education
  • Mike Birrer, Employment & Labor
  • Ken Carroll, Appellate
  • Mark Castillo, Bankruptcy: Business
  • Lance Currie, Construction Litigation
  • Carmen Eiker, Family Law
  • Whitney Green, Family Law
  • Kelli Hinson, Business Litigation
  • Mark Howland, Intellectual Property Litigation
  • Jason Katz, Business Litigation
  • Monica Latin, Business Litigation
  • Alex More, Securities Litigation
  • Christie Newkirk, Employment & Labor
  • Debrán O’Neil, Business Litigation
  • Marisa O’Sullivan, Insurance Coverage
  • LaCrecia Perkins, Business Litigation
  • Brent Rubin, Appellate
  • Jennifer Ryback, Employment Litigation: Defense
  • Brian Shaw, Business Litigation
  • Mike Sutherland, Bankruptcy: Business

2026 Texas Rising Stars

  • Haley Ablon, Civil Litigation
  • Robert Fountain, Insurance Coverage
  • Michael O’Brien, Insurance Coverage
  • Emily Owen, Health Care
  • Jordan Perry, Employment & Labor
  • Andrea Reed, Employment & Labor
  • Robert Rowe, Bankruptcy: Business
  • Amanda Saunders, Estate Planning & Probate
  • Josh Sherman, Business Litigation
  • Zach Stubblefield, Estate & Trust Litigation
  • Tyler Wright, Construction Litigation

Chat with Caution: Your AI Logs May Be Discoverable

2 minute read

Court rules client’s pre-litigation AI chat logs were admissible as evidence of wrongdoing.

United States v. Heppner.

In October 2025, the United States charged Bradley Heppner with various counts of securities fraud, wire fraud, conspiracy, and falsifying corporate records. Heppner turned to AI for advice on what to do next, from outlining his overall defense strategy to how to present certain (bad) facts. On February 10, 2026, the Southern District of New York ruled Heppner’s chat logs were discoverable and could be used as evidence.

The Court’s Reasoning.

Heppner’s attorneys argued the chat logs were protected by the attorney client privilege and/or the work product doctrine. The court disagreed.

                Attorney client privilege didn’t apply.

For a communication to be protected by the attorney client privilege under New York law (and under most state law), the communications must be (1) between the client and an attorney; (2) confidential; and (3) made to obtain or provide legal advice.

Here, the court held that Heppner’s communications with AI met none of these elements. First, AI isn’t an attorney. Second, the terms and conditions expressly stated that the information was not confidential and would be shared with third parties for, among other things, training purposes. And third, while Heppner claimed he was talking to AI to (arguably) obtain legal advice, the AI tool’s terms and conditions expressly stated that it (a) wasn’t a lawyer, and (b) couldn’t provide legal advice.

                Work product doctrine didn’t apply.

For a document to qualify as “work product” under New York law, it must be prepared by or at the direction of counsel. Here, Heppner conceded that he voluntarily made the searches, not at the direction of counsel. The court indicated that the outcome may have been different had counsel directed Heppner to use the tool as part of litigation preparation.

Takeaway: Take Care when Consulting AI for Legal Advice.

Most states (including Texas) haven’t yet squarely addressed the discoverability of AI-generated materials in this context. In some jurisdictions, including Texas, material prepared in anticipation of litigation may qualify as work product regardless of whether directed by an attorney. You should consult with counsel regarding the applicable law in your jurisdiction.

AI is a powerful tool with many helpful uses. Here are our tips to protect your AI communications:

  1. Review AI platform privacy terms. Most consumer AI platforms automatically opt you in to sharing your searches for training purposes, but many allow you to turn that function off (potentially in exchange for a subscription fee). Disabling that function supports the argument that the communications were intended to be confidential.
  • Engage counsel before you turn to AI. Under Heppner, your greatest exposure is before you engage counsel—because until then, your AI communications cannot have been made at counsel’s direction.
  • Treat AI communications like emails or texts. Assume they may one day be read in court, because as Heppner shows us, they might be.