Weighing AI’s Benefits and Risks in Litigation and eDiscovery

Editor’s Note: The integration of artificial intelligence into legal services stands poised to profoundly impact cybersecurity, information governance, eDiscovery, and the broader data landscape. As this article explores, generative AI models like ChatGPT enable new efficiencies in managing and deriving insights from large volumes of data. However, they also create novel risks around data security, privacy, and ethics.

It is incumbent upon legal tech professionals to proactively grasp AI’s implications and establish appropriate governance frameworks. Doing so will allow organizations to harness AI’s advantages while safeguarding sensitive client information, maintaining legal privileges, and upholding professional responsibilities. Readers may find this article’s distillation of key opportunities and obligations around AI adoption in law useful for strategizing their integration initiatives.

With technological change quickening, gaining practical wisdom from experts at the legal-technology intersection is critical. This article offers insight from thought leaders navigating AI’s emerging role in eDiscovery, compliance, law practice, and justice administration. Their guidance on balancing AI’s benefits and risks can inform organizations seeking to employ it for competitive advantage without compromising ethics or the rule of law.

Industry Article

Weighing AI’s Benefits and Risks in Litigation and eDiscovery

ComplexDiscovery Staff

Artificial intelligence and generative language models like ChatGPT have sparked robust discussions about their impending impact on the legal profession. This timely theme took center stage during a recent webinar titled “Demystifying Artificial Intelligence, ChatGPT, and Large Language Models in the Legal Industry,” hosted by eDiscovery services company HaystackID.

Moderated by Ashish Prasad, Vice President and General Counsel of HaystackID, the webinar featured litigation expert John Rosenthal as the main presenter. Rosenthal currently serves as a partner at Winston & Strawn LLP and chairs the firm’s eDiscovery and Information Governance practice. With over 25 years of experience, he is regarded as a leading authority on legal technology and eDiscovery.

During the extensive 60-minute webinar, Rosenthal charted an insightful course through the opportunities and ethical considerations around deploying AI in legal services. He characterized the current environment as exhibiting the classic phases of a “gold rush” following a major technological breakthrough. Hype and curiosity have rapidly multiplied along with a rush to capitalize on AI’s benefits. However, realistic diligence is vital before unleashing powerful innovations.

Transformative Potential of AI

Rosenthal emphasized that forms of artificial intelligence have already been transforming eDiscovery and litigation support for years through technologies like predictive coding. However, the splash emergence of ChatGPT and similar large language models that can generate human-like text on demand has accelerated the hype.

“These models have tremendous practical implications in the legal industry as well as almost every industry. And it will transform over time how we work, how many lawyers it takes to do certain tasks, how long it takes to do certain tasks,” observed Rosenthal.

For instance, AI tools can now draft legal memos, review documents for relevance and privilege, answer complaints, and summarize depositions. This use of AI may reduce the time spent on routine legal tasks. However, Rosenthal stressed that AI will augment rather than replace lawyers. Attorneys may need to adapt by gaining AI proficiency.

When Prasad asked if AI could replace contract attorneys for document review, Rosenthal foresaw AI increasing their productivity but not wholly substituting humans, especially for nuanced work like privilege assessment. However, he commented that law firms and legal departments might require fewer humans over time to complete projects as AI capabilities grow.

Guardrails Needed for Ethical AI Use

While acknowledging AI’s benefits, Rosenthal devoted significant discussion to establishing guardrails for its ethical adoption. He compared giving attorneys powerful AI tools without proper training and policies to providing a child with a loaded weapon. Ethically deploying AI will require understanding its limitations, validating outputs, mitigating confidentiality risks, and setting clear expectations.

Rosenthal examined AI use under various ABA model rules of professional conduct. Attorneys have an ethical duty to gain competence in new technologies they adopt. They must also exercise independent professional judgment rather than blindly rely on AI-generated work product. They must safeguard client confidences, which may require scrutinizing data flows to third-party systems.

When Prasad asked if judges could utilize AI systems to produce draft opinions, Rosenthal emphasized proper validation controls. He remarked: “It’s okay to use a tool to help refine your thinking, but at the end of the day, you can’t do what some of these practitioners are doing, which is just having it generated, sending it out the door without validating and doing some independent work.”

Rosenthal also called for law firms to have strong policies, training, and client communications around AI usage. He noted that generative models can fabricate information and exhibit biases that attorneys must mitigate through their oversight. Overall, Rosenthal advised carefully tailored adoption rather than wholesale, uncritical reliance on general legal AI tools.

Bracing for Disruption Across the Legal Industry

Beyond his practice advice, Rosenthal took a wide lens to the systemic disruption AI could unleash across the legal industry. He suggested that large law firms will need to critically evaluate AI’s implications for staffing, revenue, risk, pricing, and more. Corporate legal departments may bring more work in-house powered by their own AI tools. And the technology landscape will consolidate as some startups fail and a few dominate.

AI may also advantage parties with asymmetric resources in litigation. Rosenthal posed the example of using AI to uncover design defects across millions of documents. He projected thorny eDiscovery issues around requiring companies to run internal AI systems to generate new information.

When Prasad questioned potential civil procedure rule changes to regulate AI use, Rosenthal predicted a lag before formal rules emerged. He remarked: “I think the ones now probably aren’t ready for full prime time. They’ll be beneficial. There’s a real danger. I think that it will be very slow. You’re looking at a multi-year horizon before I think there are federal rules that would even come close to addressing this.”

Overall, Rosenthal emphasized seizing AI’s benefits through careful deployment rather than fearing either quick displacement of lawyers or overly rapid regulatory constraints. By responsibly integrating AI, legal professionals can expand access and efficiency for clients while maintaining high ethical standards.

Prasad concluded by thanking Rosenthal and the audience for an engaging discussion clarifying AI’s promise and perils. While transformative AI has arrived at the law’s doorstep, thoughtful adoption is key to unlocking its potential while avoiding pitfalls. With pragmatic guidance from experts like Rosenthal, AI may elevate legal practice rather than distort it. But realization depends on diligently nurturing progress over hype in this new machine age.

Article Sources

• [Educational Webcast] Demystifying Artificial Intelligence, ChatGPT, and Large Language Models in the Legal Industry 
• [Webcast Transcript] Demystifying Artificial Intelligence, ChatGPT, and Large Language Models in the Legal Industry

Assisted by GAI and LLM Technologies

Additional Reading

• Risky Business? Cybersecurity Experts Urge Responsible AI Adoption
• Defining Cyber Discovery? A Definition and Framework

Source: ComplexDiscovery