Should Courts Use Standing Orders or Local Rules to Address A.I.?

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Some courts have issued Standing Orders governing the use of A.I.  Another viewpoint is that a better approach is to use Local Rules.  See Shweta Watwe, Judges Reflect on GenAI Use One Year After ChatGPT’s Debut (bloomberglaw.com)(Nov. 28, 2023).  This blog is based on Ms. Watwe’s excellent article and, in the interest of brevity, please assume that all of it is cited to that article.

USE OF STANDING ORDERS

Many judges have issued standing orders.  Ms. Watwe reported that one Judge’s purpose was to prevent problems:

“I have the pound of cure in my ability to sanction lawyers. I would rather have the ounce of prevention so that’s my goal,” he said. He added that he thought his order had a shelf life as the technology improves and attorneys become more familiar with its capabilities.

One Judge candidly recognized “my flawed language” in one such order and revised it.  Ms. Watwe wrote that:

More than a dozen other judges have followed with their own standing orders outlining generative AI use in their courtrooms. The orders range in scope from merely warning attorneys about generative AI’s pitfalls without prohibiting its use to requiring attorneys to disclose how generative AI was used, to prohibiting AI use outside of search engines.

Most recently, the four judges who comprise the US District Court for the District of Hawaii on Nov. 14 issued a general order on the use of “unverified sources” in AI-generated filings that requires counsel to declare how the filing was drafted and that its accuracy has been confirmed. “The scope of the required declaration is that required by Rule 11,” the order says.

One Judge reported that “in the months since issuing his order, he hasn’t received any notices of generative AI use in his courtroom but he believes that attorneys are following his rule. Though attorneys haven’t said they’re using AI in their filings, [Judge] Vaden noted other judges, lawyers, and elected officials have privately thanked him for issuing the order and alerting them to potential issues with the technology.”

An argument favoring the use of Standing Orders is that they can be issued quickly and are flexible and easy to amend.

USE OF LOCAL RULES

An argument against use of Standing Orders is lack of uniformity and the absence of a vetting process like rulemaking.  Those concerns suggest a different approach:

Former Judge Paul W. Grimm, who retired after 26 years on the bench of the US District Court for the District of Maryland, says this patchwork of generative AI orders isn’t as clear as it could be.

“If a judge just sits down and, and shoots out an order, no one’s had a chance to look at that and say, wait a minute, judge, do you really need this?” Grimm said. “I just inherently prefer going to a local rules approach because that way you publish them and people have a chance to see them.”

Along with co-authors Maura Grossman and Daniel Brown, Grimm argued in a paper published in the most recent issue of Duke Law School’s journal Judicature that courts should adopt local rules. Such an approach would allow other judges and attorneys to comment on the rule which would reveal unintentional adverse consequences and better address scope issues, they say.

“Individualized standing orders are unnecessary, create unintended confusion, impose unnecessary burden and cost, and deter the legitimate use of GenAI applications that could increase productivity and access to justice,” Grimm and his co-authors say in the article.

The Hon. Xavier Rodriguez “said judges shouldn’t issue these kinds of orders for a few reasons.” He cited his Sedona Conference publication “Artificial Intelligence (AI) and the Practice of Law.”  “[Judge] Rodriguez said some of the orders have an anti-technology tone…. He also noted that a number of orders conflated generative AI with artificial intelligence, which is a much broader field.”

Doug Austin reports that at least 14 federal trial courts have adopted A.I.-related rules of some sort.  He reports that a Fifth Circuit proposal would be the first appellate rule. Doug Austin, 5th Circuit Considering Certification Rule for Generative AI (ediscoverytoday.com)(Dec. 1, 2023).  Doug adds:

Given that we’re continuing to see filings with bogus cases (recent examples here and here), it’s not surprising that courts are considering rules changes – even though FRCP Rule 11 should be enough to hold them accountable (as Maura R. Grossman, Paul W. Grimm and Daniel G. Brown noted in this article). Apparently, courts – even appellate courts – are finding that they need a more blatant reminder for the attorney as to their duties in their representations to the court.

DISTRICT OF MARYLAND’S LOCAL RULES PROCESS

Local Rule 605 in the United States District Court for the District of Maryland establishes both a regular and an expedited procedure for amending the Local Rules.

Under the Regular Procedure there is a comprehensive vetting process:

The Court shall consider proposed amendments to these Rules at least every three (3) years. Any person may submit proposed amendments to the Chief Judge. Any such proposals will be reviewed by the Rules and Forms Committee of the Court which will recommend to the Court as a whole any amendments which it believes should be adopted. At least ninety (90) days prior to the proposed effective date, the Court will cause to be published on the Court’s website notice of the substance of any amendment (subject to public notice and comment) which a majority of the members of the Court have agreed should be adopted. The Clerk shall maintain for public inspection copies of any proposed amendments. Any member of the public may submit comments on a proposed amendment to the Chief Judge within thirty (30) days of the first public notice of the proposed amendment or such later date as may be set by the Court. The Court will take final action upon the proposed amendments after giving consideration to any such comments which have been submitted. Unless otherwise ordered by the Court, the effective date of any amendment shall be July 1st of the year in which it is adopted.  [emphasis added].

Under the expedited procedure, any emergency need can be addressed by a Local Rule:

When the Court determines that there is an immediate need to implement either a new rule or an amendment to an existing rule, including a technical, clarifying, or conforming amendment, the Court may adopt the rule or amendment without complying with the procedure set forth in L.R. 605.1. If such a rule or amendment is adopted, public notice of it shall be given promptly after its adoption, and it shall be submitted for public consideration in accordance with L.R. 605.1 during the next regular amendment cycle.

CONCLUSION

While it appears that this Local Rule is capable of addressing all of the concerns stated, I have an additional concern about the Standing Order approach.  Much of the work in litigation often begins long before a lawsuit is commenced.  At that time, attorneys don’t know which Member of the Court will be assigned to their case, if the Court has special assignment.  They may choose one pre-litigation course of action if they knew that they would be under Judge A’s Standing Order A and a different one if they may be governed by Judge B’s Standing Order B.  A Local Rule dispels that uncertainty.

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

UPDATE 12/3/2023 – see The Hon. Scott U. Schlegel, 🚀 A Call for Education Over Regulation: An Open Letter — Judge Scott Schlegel (judgeschlegel.com).  “In my humble opinion, an order specifically prohibiting the use of generative AI or requiring a disclosure of its use is unnecessary, duplicative, and may lead to unintended consequences…. The legal profession is already guided by stringent ethical standards and professional responsibilities….  A focus on education and adaptability within these existing frameworks would be a more effective way forward.”

 

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