Source: JD Supra

JD Supra addresses a critical and emerging challenge in legal discovery: the detection of AI-generated content. As generative AI tools become ubiquitous, the potential for "synthetic" or AI-manipulated evidence to appear in litigation grows. This article provides key points and strategies for lawyers to use during the discovery process to determine if and how AI was used by the opposing party. It moves beyond simply identifying fake case citations to the more complex task of uncovering AI's role in creating documents, communications, and other forms of evidence.

The authors suggest several avenues for inquiry. These include crafting specific interrogatories and requests for production of documents aimed at revealing policies on AI use, logs from AI platforms, and the prompts used to generate content. Deposition questioning can also be tailored to probe a witness's workflow and reliance on AI tools. The article emphasizes the importance of metadata analysis and potentially retaining forensic experts who can identify the subtle digital fingerprints that AI models may leave. This new dimension of e-discovery is essential for verifying the authenticity of evidence and ensuring the integrity of the litigation process.