Technological advancements have occurred at unprecedented rates over the past decade, and the release of generative AI has only accelerated this trend. Judges are finally paying attention, but the response is as unhinged as you’d expect.
Since the turn of the century, computers and the online world have become inextricably intertwined with our lives. From communicating and shopping to obtaining information and conducting business, the ubiquity of technology is inescapable, creating a digital footprint for nearly everything that we do.
As early as 2006, rules were introduced to address this growing volume of digital evidence. The new amendments to the Federal Rules of Civil Procedure established procedures for identifying, preserving, producing, and handling electronically stored information in civil litigation.
Since then, the pace of change has been dramatic, and the number of court rules aimed at addressing technology’s impact has grown just as quickly. However, unlike the relatively uniform, top-down framework created for ediscovery, the approach to newer technologies has been rushed, piecemeal, and adopted only after problems became apparent.
Every time new technology is released, including social media and now generative AI, another round of rules and standing orders tends to follow. The result is a steady buildup of tech-focused mandates that vary widely from one courtroom to the next.
A recent case from the Northern District of California exemplifies how court rules on technology can complicate litigation. In a matter pending before Judge Orrick, the law firm Alston & Bird, LLP hired a consultant to conduct juror research.
Orrick had issued a standing order prohibiting the research of jurors on LinkedIn. His rationale was that the platform alerts users when someone views their profile, and even if the viewer can’t be identified, the notification still amounts to impermissible juror contact. Lawyers from the firm were aware of the judge’s order, but failed to alert the consultant to it.
The consultant unwittingly reviewed the prospective jurors’ public LinkedIn profiles. Upon discovering that the research had occurred in contravention of the order, the attorney involved attempted to rectify the mistake by disclosing this information to opposing counsel and notifying the judge prior to jury selection. Despite those efforts, Orrick found the order had been breached and imposed a $10,000 sanction.
With courts struggling to manage technology issues as basic as social media evidence, it’s no surprise that the impact of generative AI has been even more chaotic. The rise in the submission of briefs with AI-related citation hallucinations has led to an ad hoc assortment of knee-jerk responses by judges, resulting in a surge in new court orders and sanctions.
Responsible AI in Legal Services (RAILS) tracked many of these orders, which range from simple guidance on AI usage or disclosure requirements to outright bans. A review of the orders shows that each judge seems to be taking a different approach, and while their intentions are good, the lack of consistency is problematic.
This constant stream of new mandates leads to unnecessary confusion. Lawyers who appear in multiple courts are required to sort through a growing mix of expectations, and what passes in one courtroom might violate a standing order in the next.
These cases illustrate how court restrictions can stifle curiosity about technology and negatively impact adoption rates. Keeping up with emerging technologies, evolving ethical obligations, and busy caseloads is challenging enough. When the rules are inconsistent and vary from court to court, some lawyers may decide that the safest path is to avoid technology altogether.
To be clear, the issue isn’t whether courts should offer guidance on technology use in the courts; instead, it is the lack of a uniform approach. Without consistent standards, every new rule adds uncertainty and indirectly discourages technology adoption.
Instead of individual rules, courts need consolidated, consistent guidance at the statewide or national level. A unified framework would give everyone a clear understanding of what’s permitted, what isn’t, and how to use modern tools without fear of stumbling into an unexpected violation.
Until that happens, lawyers will continue to be wary of adopting technology that could improve accuracy, efficiency, and access to justice. Consolidated guidance would cut through the confusion, support responsible use, and modernize court processes, allowing lawyers to view every new technology as an opportunity rather than yet another hurdle to navigate.
Nicole Black is a Rochester, New York attorney and Principal Legal Insight Strategist at 8am, the team behind 8am MyCase, LawPay, CasePeer, and DocketWise. She’s been blogging since 2005, has written a weekly column for the Daily Record since 2007, is the author of Cloud Computing for Lawyers, co-authors Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York. She’s easily distracted by the potential of bright and shiny tech gadgets, along with good food and wine. You can follow her on Twitter at @nikiblack and she can be reached at [email protected].