At the end of 2025, amendments were made to the Federal Rules of Civil Procedure that fundamentally change when and how litigators must address privilege issues in federal court. These amendments followed an important decision in the Sixth Circuit in In re FirstEnergy Corp., 154 F.4th 431 (6th Cir. 2025), which provided practitioners fresh guidance for protecting privileged materials early in the litigation. Understanding these developments and beginning to plan around privilege at the outset of a case is essential for anyone litigating in federal court today.
Commercial Litigation
Crossing the Line? Broker Lift-Outs and Duties of Disclosure in the UK
By Dorothy Murray & Nicola Bartholomew on
In the recent decision in Guy Carpenter & Company Ltd v Willis Re (UK) Ltd [2026] EWHC 361 (KB), the High Court considered a series of claims between two competitor reinsurance brokers arising from a major team move of 22 employees, including two company directors
While many reported “team move” cases take place in the insurance sector, the judgment is a salutary reminder for all employers and employees about the scope and limits of duties in the context of recruitment.
Michigan Federal Court Protects AI-Assisted Litigation Work Product
Courts issued two seemingly conflicting rulings on whether AI generated materials are protected. Heppner (S.D.N.Y.) found that documents created with a consumer version of Claude AI were not privileged or work product because the tool exposed data to a third party provider. Warner (E.D. Mich.) reached the opposite result the…
SDNY Addresses Privilege and Work Product Implications of Using Unsecured Public AI Tools
A recent decision in United States v. Heppner appears to be the first federal ruling to directly address attorney‑client privilege and work‑product issues arising from a non‑lawyer’s use of a consumer-grade insecure AI tool for legal research. The court held that materials generated through Anthropic’s consumer version of Claude were…
The Widening Of Public Access to Court Documents Under Practice Direction 51ZH: A Review and Comparison to the US Position on Transparency in Proceedings
By Eliza Kay & Michael Beckwith on
The United Kingdom Public Documents Pilot Scheme (the “Pilot”) will come into force on January 1, 2026 and will be introduced under the new Practice Direction 51ZH “Access to Public Domain Documents” (“PD 51ZH”). The Pilot will significantly expand and facilitate public access to court documents and follows the U.K. Supreme Court judgment of Cape v Dring [2019] UKSC 38 (see also our earlier blog post on this: Can Open Justice Be Too Open? A Review of Proposals to Provide Non-Parties Greater Access to Court Documents in England & Wales | Minding Your Business). A Guidance Note on PD 51ZH has also been published by the Judiciary.
Beyond the Click-to-Cancel Rule: the FTC Finds its Power in the Amazon Settlement
By Sarah A. Emmerich on
On September 25, in a landmark resolution that underscores the FTC’s renewed focus on digital consumer protection, Amazon agreed to pay $2.5 billion—including a $1 billion civil penalty and $1.5 billion in consumer refunds—under the Settlement Order in FTC v. Amazon. The case, brought before Judge John H. Chun in the Western District of Washington, targeted Amazon’s Prime subscription program, alleging that the company enrolled consumers without proper consent and made cancellation unnecessarily difficult, in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (ROSCA).
Compulsory Initial Disclosures are Here to Stay in California: Now What?
By Kelly Curtis on
The California legislature’s efforts to streamline the discovery process, promote transparency and fairness in civil proceedings, and reduce discovery abuse began in 2019, when California Code of Civil Procedure (C.C.P.) § 2016.090 was amended to provide for initial disclosures, but only if the parties stipulated to such an exchange. Unsurprisingly, the rule change had little impact, as very few parties agreed to make the exchange. In 2023, legislation was passed to make the exchange potentially involuntary—now every party to the action must make initial disclosures so long as any other party demands them.
Removal? Snap to it!
By Timothy E. Burroughs on
The forum defendant rule normally bars removing a state case to federal court when there is a forum defendant, even if the parties are otherwise diverse. A rarely-used method is the exception to this rule. Using a procedure called snap removal, defendants can avoid the forum defendant rule by removing before the forum defendant is served.