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].