Professional Responsibility Considerations in AI

Professional Responsibility Considerations in AI for eDiscovery: eDiscovery Best Practices

Congrats to EDRM for their announcement of a new white paper on Professional Responsibility Considerations in AI for eDiscovery! A portion of the press release is below, here’s a link to the full release.

Professional Responsibility Considerations in AI for eDiscovery: Competence, Confidentiality, Privacy & Ownership

EDRM’s Project Team Publishes Final Paper after Public Comment Period

MINNEAPOLIS, MN, USA, June 14, 2023 — Setting the global standards for e-discovery, the Electronic Discovery Reference Model (EDRM) is pleased to announce its white paper addressing “Professional Responsibility Considerations in AI for eDiscovery: Competence, Confidentiality, Privacy and Ownership (available here) is now final after a public comment period.

Privacy and security enabled eDiscovery technology and services will play a central role in organizations as they strive to rebound from the current global crisis as more cohesive, more stable and more productive entities. Robust e-discovery technology, supported by expertise and services, helps organizations respond to litigation, compliance and investigation demands. In a new era of remote work at scale, organizations need to securely manage information, protect confidential and privileged access and collaborate effectively to be efficient and productive and adhere to the increasing complex demands of security and data privacy frameworks.

Use of artificial intelligence (“AI”) tools in eDiscovery creates new opportunities for attorneys. By extracting, analyzing, and applying information from large data sets, AI tools can provide new insights, systematize processes, speed time to resolution, and reduce costs. A notable example is technology-assisted review (“TAR”), a process that makes use of machine learning to prioritize or classify relevant material in document reviews. Legal practitioners may reduce costs, time, and mistakes by applying TAR in litigation, antitrust reviews, investigations, and other matters. However, as legal teams’ uses of these technologies evolve, ethical issues may arise, particularly with the opportunities for reusing the results of the computer learning in future matters, but for different clients.

The white paper addressing “Professional Responsibility Considerations in AI for eDiscovery: Competence, Confidentiality, Privacy and Ownership” is published by EDRM’s Analytics and Machine Learning’s subgroup on AI Ethics and Bias, led by Project Trustees, Khrys McKinney, Principal, K L McKinney and Dave Lewis, Chief Scientific Officer, Redgrave Data.

“Attorneys who authorize the use of machine learning on their client data can improve their ability to protect themselves and their clients by first learning what, if any, of their client’s information will possibly inform algorithms beyond the initial matter,” said Khrys McKinney.

“AI programs like ChatGPT say the darndest things. So do machine learning systems that attorneys might train on client data, and it behooves them to be aware of the risks to confidentiality, privacy, and intellectual property,” asserted Dave Lewis. “We hope this white paper will provide helpful guidance.”

“EDRM and our whole legal community are fortunate that top e-discovery data scientists, and other experts, led and contributed to preparation of this cutting-edge paper,” commented David R. Cohen, Reed Smith partner and Chair of the EDRM Project Trustees. “It highlights important issues that arise from the use of AI models across multiple matters– issues that most attorneys may not have previously considered, but must consider– to ensure that we are fulfilling our ethical duties, including protecting client confidences.”

EDRM is grateful to the project team (organizations noted for identification purposes only):

  • Ricardo Baeza-Yates, Director of Research, Institute for Experiential AI at Northeastern University, USA (San Jose, CA)
  • Lilith Bat-Leah, Vice President, Data Services at Digital Prism Advisors, Inc. (New York, NY)
  • Darius Bennett, Darius Emeka Bennett, P.C., CEO and Attorney, Civil Litigation, eDiscovery and Criminal Defense (Birmingham, AL)
  • Tara Emory, Senior Vice President of Strategic Growth and General Counsel at Redgrave Data (Falls Church, VA)
  • David D. Lewis, Chief Scientific Officer at Redgrave Data (Denver, CO) [Trustee]
  • Khrhysna McKinney, Principal at K L McKinney (Sugar Land, TX) [Trustee]
  • Dana Bucy Miller, Associate Director, Legal Solutions, QuisLex Inc. (Baltimore, MD)
  • James A. Sherer, Partner, BakerHostetler (New York, NY)
  • George Socha, Senior Vice President of Brand Awareness, Reveal (St Paul, MN)

We need a lot more consideration of professional responsibility for AI, so congrats to EDRM and the AI Ethics and Bias project team for giving us this useful guide!

So, what do you think? Are you concerned about ethics in the use of AI and bias in the models? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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