Still unpacking all the insights from Legalweek. Here’s one for you: get a protective order against using public GenAI to review produced documents.

That was a recommendation I heard at least two times this week. The first was from David Cohen, Partner at Reed Smith, who was part of a terrific panel on Tuesday in the Relativity sponsored session titled Generative AI: Judges, Lawyers, and Technologists on Legal Ethics and Practical Guidance, which included Dave, and several other terrific panelists (Justice Tanya R. Kennedy from the Supreme Court of the State of New York, Texas District Judge Xavier Rodriguez, Texas District Judge, Linda Sheehan, Head of intelligENS, ENS in South Africa, and moderator David Horrigan, Discovery Counsel & Legal Education Director of Relativity – side note: Judge Andrew Peck was in the audience and also provided comments on the topics as well).

Dave’s closing recommendation related to documents produced by his client and the concern that the opposing party would load them into the public version of ChatGPT or some other model to analyze them – which, of course, has serious data privacy implications. So, Dave’s recommendation was to get a protective order against using GenAI on those produced documents.

The topic was also brought up during a roundtable luncheon with Level Legal on Wednesday (who always conducts terrific roundtable discussions at events like this) when the moderator at our table (Daniel Bonner, Director of Client Solutions at Level Legal) asked a table of legal professionals: “What keeps you up at night?”

One of those topics that was brought up by Olga Friedman of Latham & Watkins was the potential that receiving parties would load their clients’ produced documents into a public GenAI tool and why they are needing to pursue a protective order to prevent that from happening. It’s one consideration in our new GenAI world that isn’t being discussed enough but could have significant ramifications to a law firm’s duty to protect its client’s data (even when that data is not within their direct control).

This tip is obvious to some, perhaps, but I’ll bet a lot of lawyers for producing parties may not think about doing that. They should.

More to come about Legalweek next week! 😊

So, what do you think? Are you getting a protective order against using GenAI to review produced documents? You should! 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 authors and speakers themselves, 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.