As the former director of an eDiscovery Services department at an AmLaw 100 law firm and now as a legal operations consultant, I’m watching the rapid evolution of artificial intelligence across the industry with great interest and a strong sense of déjà vu.

A federal judge in the Southern District of New York has imposed Rule 11 sanctions including a $5,000 penalty against lawyers who “abandoned their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT, then continued to stand by the fake opinions after judicial orders called their existence into question.” Mata v. Avianca, Inc., No. 22-cv-1461 (PKC) (SDNY June 22, 2023) (via Law & Crime).

The conduct of the New York lawyers was egregious, but the order is more noteworthy as an early indicator of the skepticism and concern some courts are expressing on the use of powerful and disruptive artificial intelligence technology emerging in the legal industry. Several federal court standing orders (for example, in Texas, Illinois and Pennsylvania) are following suit, requiring mandatory certifications by attorneys on whether they used artificial intelligence in preparation of pleadings and, in some cases, requiring disclosure of the actual tools and means of use.

While the emergence of generative AI tools like ChatGPT in recent months causes both widespread excitement and legitimate concern, eDiscovery professionals have a unique opportunity to offer expertise and guidance on how law firms and legal departments approach these issues. After all, “artificial intelligence” has been in use in the eDiscovery world for many years. EDiscovery practitioners have helped shape the way courts adapt to disruptive technologies before.

Think about it: Litigators and paraprofessionals managed the use of electronic data long before the Federal Rules of Civil Procedure were amended in 2006 to specifically address emerging electronic discovery sources. They served on advisory committees, helped educate the bar on the rapidly evolving issues surrounding electronic discovery, and formed research and policy organizations like the EDRM and Sedona Conference. The same practical knowledge and thought leadership is desperately needed now to help frame the narrative surrounding the broader use of “artificial intelligence” in all areas of the law.

Further, eDiscovery practitioners can dispel the misconception that all AI tools are suspect. What the courts are really focused on is the potential for tools like ChatGPT with no guardrails to damage the integrity of the judicial process. EDiscovery professionals know that not all AI tools are created equal. Electronic Discovery software has incorporated artificial intelligence technology for many years and is ahead of the curve in integrating the latest and greatest functionality. Research and development roadmaps for eDiscovery software are largely driven by the needs of the law firms and legal departments that use these tools. EDiscovery practitioners are accustomed to dealing with the impact of advanced technology on large data sets as well as regulation of data privacy and data security. Those who have worked with Technology-Assisted Review (TAR) and Computer-Assisted Learning (CAL) are well positioned to understand and explain to lawyers and clients the processes and potential dangers of Large Language Models, and the significant differences between ChatGPT and other cutting-edge tools specifically designed for the legal market.

Similarly, eDiscovery professionals are obvious choices to help firms and legal departments vet vendors and evaluate new AI technology. The same RFP process and due diligence are necessary to analyze and protect large investments in electronic discovery technology and relationships with managed service providers. Indeed, some AI providers will be the same companies that provide eDiscovery services. The vendor relationships and unique industry knowledge that eDiscovery professionals have are invaluable to any law firm or legal department endeavor to understand the emerging AI landscape.

The specialized knowledge of eDiscovery professionals should be leveraged early and often as law firms and legal departments navigate the rapidly changing artificial intelligence landscape. They are tremendous resources not only in applying their experience to explain the technology and analyze potential investment opportunities, but can be instrumental in helping instill the trust and confidence of corporate clients and stakeholders that the larger organization has the know-how to adapt and make responsible competitive use of artificial intelligence.

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.