The topic of generative artificial intelligence tends to inspire spirited conversations, and during an event Thursday, experts at Reed Smith hashed out controversial topics that have emerged in the e-discovery space as technology such as gen AI has advanced.
At the seventh annual “Discovery Crossfire: Debating the Controversial AI Issues in Discovery” webinar hosted by the Pittsburgh-founded law firm, lawyers exchanged views on issues concerning gen AI interactions, electronically stored information protocols, and more.
When the subject arose about whether a party could use third-party gen AI tools to analyze and perform summarization on adverse party discovery materials without their consent, Reed Smith partner Anthony Diana argued that this should be permitted.
“Every lawyer should be using … the best process available to efficiently review whatever discovery materials the other side turns over, we know we live in a world where oftentimes it’s incredibly voluminous,” he said. “There’s nothing in the federal rules of super seizure that says I can’t do whatever I want with these materials, whether I’m using technology, whether I’m using people, it doesn’t really matter, right, as long as I’m reasonable, I’m keeping everything confidential.”
Diana added that if the adverse party were able to question the party using the gen AI tools, it would result in a growingly tedious line of questioning regarding things such as the type of AI or whether search terms were used.
On the other hand, Reed Smith partner Therese Craparo contested Diana’s stance, arguing that confidentiality should be a priority first and foremost and that investigations get murky once gen AI is involved.
“We require protective orders to make sure that we protect sensitive data, that includes, by the way, who can see that data, like court reporters and e-discovery vendors and other third parties, and we make them sign onto protective orders, so it’s curious to suggest that when we’re using gen AI tools, we suddenly don’t have an obligation to make sure that those third parties of that software are properly protecting the data,” she said.
The panel also discussed whether a party has the duty to preserve its interactions with gen AI and should the gen AI not have a data-preserving mechanism, a party could restrict or prohibit the use of that by any legal custodian.
Craparo agreed with this statement, pointing out that the Federal Rules of Civil Procedure’s Rule 26 requires the preservation of data that is relevant to the party’s defenses and claims.
“We have seen situations with … gen AI chatbots, where people give a response that’s false or misleading that results in harm but clearly are going to be relevant,” she said. “Now, where a party does determine the gen AI prompts and responses are relevant to a particular matter, the question becomes the scope of their obligations, if that particular tool doesn’t have preservation capabilities.”
Diana disagreed, arguing that legal professionals should be free to use gen AI tools because most of the time their use is not going to be relevant.
“Proportionality is one thing, but when we’re now saying to the business, there’s this legal issue that came up which is probably specious anyway, and now you can’t use a tool that you need for your business, that’s insane. … You’re going to be laughed out of your organization, nobody on this phone is going to be able to tell their business,” he said.
Another debated statement was that it’s not useful for court orders to incorporate ESI protocols in most cases.
Diana agreed and defended his stance by saying that ESI protocols rarely stay static during an investigation and data sources are going to be changing constantly, which complicates communicating the steps the party takes in the investigation.
“One of the things that is difficult is once you put it in an ESI order and it’s a court order, now you have to keep going back to the court,” Diana said, adding that this would slow down the efficiency and heighten the cost of the party’s work.
Craparo disagreed and noted that parties should be able to experiment and change the rules as they go.
“Court orders provide the parties with assurances of compliance with the agreed-upon protocols and avoids unilateral innovative changes by one party,” she said. “It provides a clear enforcement mechanism if a party does choose to unilaterally deviate from the agreed-upon protocols, and it incentivizes the parties to cooperate and to confer on changes to the e-discovery protocols.”
The last topic discussed suggested that issuing legal hold notices to custodians requiring preservation of relevant ESI on cellphones can be a sufficient step for companies to meet cellphone ESI preservation requirements for most custodians in most cases.
Craparo agreed and noted that notices are significant, and if they aren’t in place, the alternative can be burdensome and expensive.
“There are necessarily proportionality considerations at play, the privacy and constitutional rights of the individual custodians. Parties don’t, in most cases, have the ability to just see somebody’s phone and force them to turn over their passwords,” she said. “The tremendous burden and expense involved in imaging personal devices, including the substantial overcollection of personal data, moreover there are other less invasive, equally effective measures for preservation users can be provided with instructions linked to legal hold notice on how to take appropriate preservation steps such as backing up your phone to the cloud or turning off auto delete in your text messaging or other tools.”
Diana pushed back, pointing out that everyone uses a cellphone and there isn’t really a centralized way of preserving data on phones.
“I think particularly when people do bad things, it’s on mobile devices,” he said. “From an ethical standpoint, I don’t think ethically you could just rely [on sending out a notice] because you know that people are using their phones and you’re not taking steps to do it, so I think it’s clearly going to be important going forward to have processes and procedures to preserve of them.”