What's Happening?
Federal courts are increasingly imposing restrictions on the use of generative artificial intelligence (AI) in litigation to manage privacy risks. Recent decisions in Jeffries v. Harcros Chemicals, Inc. and Morgan v. V2X, Inc. illustrate this trend. These
courts have used protective orders to set boundaries on how litigants can use AI tools when handling discovery materials. The courts concluded that the confidentiality and data privacy risks associated with public AI tools justify these protective measures. In Jeffries, the court prohibited the use of public AI tools for uploading discovery documents, citing risks such as data exposure and difficulty in retracting data once used in AI training. Morgan's decision emphasized the importance of AI vendor terms and data-handling practices, requiring that AI tools meet specific contractual requirements to protect confidential information.
Why It's Important?
These court decisions highlight the growing judicial concern over the use of AI in legal processes, particularly regarding data privacy and confidentiality. By imposing restrictions, the courts aim to prevent potential data breaches and misuse of sensitive information. This approach could significantly impact how legal professionals use AI in discovery, potentially increasing the cost and complexity of litigation. The decisions also underscore the need for legal teams to carefully select AI tools that comply with court-imposed standards, which may limit the use of widely available public AI tools. This could disadvantage less-resourced litigants who cannot afford enterprise-level AI solutions, raising equity concerns in the legal system.
What's Next?
As courts continue to scrutinize AI use in litigation, legal professionals should anticipate further developments in this area. Parties involved in litigation may need to address AI-related issues early in the discovery process and incorporate appropriate provisions into protective orders. The lack of binding precedent on acceptable AI tools means that legal teams must stay informed about evolving standards and be prepared to adapt their practices accordingly. Future court rulings may provide more clarity on the acceptable use of AI in discovery, but until then, parties should assume that AI use will be closely monitored and regulated.
