Is disclosure and certification of the use of generative AI for courts really necessary? A new article discusses why it’s not and proposes a better alternative.

The article Is Disclosure and Certification of the Use of Generative AI Really Necessary? was written by Maura R. Grossman, Paul W. Grimm and Daniel G. Brown and while it will be included in the forthcoming October 2023 issue of Judicature, it is shared with permission for viewing or download from here now.

The article focuses on the fact that judges are issuing individual standing orders for their courts (like this one) that may intentionally or unintentionally curtail the use of GenAI in connection with court filings because they require litigants to disclose their use and to submit certifications about their efforts to verify the accuracy of any factual representations or case authority cited when using GenAI.

While the authors note: “At first blush, this might seem like a welcome development”, they also state this:

“But while the impulse underlying the imposition of such orders is understandable—even commendable—there may be real disadvantages in doing so. For example, some of the orders have been overly broad—sweeping into their scope AI applications that do not produce final work product and that do not suffer from GenAI’s propensity to hallucinate. Such orders may infringe on attorney work product and can discourage the use of technology that will increase access to justice for unrepresented litigants and reduce costs for litigants who are represented. Other orders have been vague and ambiguous about the technologies they cover, leading to confusion among counsel and parties. And, given the speed with which judges are issuing such orders, there has been a lack of consistency, which can only add to confusion and impose additional burdens and costs on litigants who must—on pain of being sanctioned—make sure, in each case, that they have checked to see whether such an order governs, and if so, to adhere to it.”

The article proceeds to provide a thorough discussion of what led to this judicial response, identifies in detail the various standing orders issued to date and some of the concerns they raise (characterizing the “mosaic of inconsistent, individual standing orders” as “Bringing a Cannon to a Sword Fight”). It also provides a detailed discussion of the technical issue that is causing the problem, as well as and solutions currently available (in the form of rules already in place) or on the horizon, and finally, proposes what the authors believe to be a better alternative: “public notice and/or consistent, court-wide rules, following publication and public comment”.

The discussion of the technical issue references their previous article (The GPTJudge: Justice in a Generative AI World) also shared with permission just a few months ago (which I covered here). Both articles go in-depth into issues that legal professionals (especially judges) should be thinking about when it comes to the use of generative AI. Those issues are developing and changing quickly and both articles have been timely in providing important considerations for addressing the issues.

Is disclosure and certification of the use of generative AI for courts really necessary? I agree with the authors that the answer is no. Check out the article here to find out why and the “better alternative” they propose.

So, what do you think? Should courts require disclosure and certification of the use of generative AI? 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.