Reflections of a Senior Litigator

The Bencher  |  July/August 2024

By Francis T. McDevitt, Esquire

Hardly a day passes without a technological advancement being discussed in the media. This has caused me to think about the state of technology as it existed when I commenced practice as compared to today and the implications of those developments.

It goes without saying that technological innovations have been a boon to the legal profession. But there are perils that attach to the benefits. My entire 46-year career has been devoted to civil litigation. When I started practicing law, a major “innovation” was the fax machine. It allowed for the rapid delivery of letters and documents, though they were initially printed on silver paper that curled up as it came out of the printer. And the ink on those pages would fade away over time!

IBM’s “Mag Card” typewriter was another breakthrough that made it easy to create form documents. This was followed by desktop word processors. These machines seem prehistoric today. The technology revolution is accelerating at an ever-increasing rate, and many of the innovations have produced efficiencies beneficial to counsel, the judiciary, and clients.

As electronic filing of documents became the norm, it increased efficiency and convenience. It also removed the angst about hand-filing court documents. The production of a large volume of
documents was at one time a formidable task. The redaction of documents produced in litigation had to be accomplished by using scissors to cut and paste! Liquid paper and white tape were used to hide confidential information. All of this is now easily handled within the programing in PDF documents.

The ability to search a document for a particular word or phrase has made life immeasurably easier—especially when looking for whether a subject or a client is mentioned in a 10,000-page document. The “word search” function can be invaluable to an attorney in a deposition or at trial when a witness says something that may be contradicted by prior testimony.

But technological innovations also bring challenges. Competency in technology is now required in the same manner as keeping abreast of changes in the law. For example, the exchange of documents electronically is now routine, and the use of file-sharing platforms, such as Dropbox, is ubiquitous. A lawyer must be careful when using these platforms to avoid the inadvertent disclosure of confidential information.

Having an in-house information technology (IT) department or a close relationship with an IT vendor is mandatory. Rule 1.1 of the American Bar Association’s (ABA’s) Model Rules of Professional Responsibility in comment 8 states that a lawyer should keep abreast of the benefits of technology. I thus cringe a bit when I hear an attorney stating that they do not know how to use various technologies common in today’s practice.

Knowing How Metadata Works

I have found that the electronic production of records includes interesting issues regarding metadata. Metadata is information embedded within electronic documents and has been a subject of discussion for a number of years. By now, every lawyer who produces documents electronically should be aware of the term and have at least a rudimentary understanding of it. In casual conversations I have had with lawyers, there is a clear lack of understanding about metadata.

Metadata may include the date on which a document was created, the computer on which it was created, the date when the file was last accessed, the date on which it was last modified, and the number of prior versions of the file. The program used to create the document will control the extent of the metadata that can be embedded in the document. However, one must know that there is the ability to erase metadata either in the creating program or by the use of an ancillary program.

In situations where there are questions about the date of a document or perhaps it authenticity, the attorney has to know to inquire about how the document was created and whether the metadata was erased. If the document was created without metadata being embedded in it, the attorney must inquire why there is no metadata.

Discovery disputes may arise as to the confidentiality of metadata, and objections may be placed as to the production of metadata. Federal Rule of Civil Procedure 34 (b) addresses how disputes over the production of metadata are to be handled. What may not be readily apparent is that metadata in a document may lead to discovery of and into data on other devices, such as the device on which the document was created, a server, or a back-up system. Attorneys need to be aware that when they are producing electronic documents the production may not be the end of the line concerning discovery. The extent of metadata discovery is discussed in numerous reported cases.

The Introduction of AI

The single most significant recent development concerns artificial intelligence (AI), specifically ChatGPT. ChatGPT is a program capable of generating text that reads as if it were written by a human. A very simplified description of how it works is that the program takes large amounts of information inputted into its algorithm and generates written material in response to requests. I have not used ChatGPT and, as such, my comments are not from firsthand experience. But it is an understatement to say that ChatGPT is a hot topic both in the legal field and in academia.

AI could potentially save us a significant amount of time and thus effectuate a cost saving for the client. However, ChatGPT and similar programs can “hallucinate,” or produce responses that are nonsensical, incorrect, or made up entirely. There have been documented instances in which ChatGPT made up case names and citations.

The instances of such gibberish are reported to be diminishing as the programs “learn.” This senior practioner sees no problem with using such a program as a research tool as long as the attorney checks the product produced by AI. However, if an attorney asks the program to produce a brief to be filed with the court and does not review the content of the document produced, then significant problems can arise. Rule 11 of the Federal Rules of Civil Procedure reads in part: “The signature of an attorney or party constitutes a certificate by the attorney or party that the attorney or party has read the pleading, motion, or other paper; that to the best of the attorney’s or party’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law...”

The failure to ensure that the pleading, motion, or other paper meets the requirements of Rule 11 could land an attorney in hot water with the court, the local ethics board, and the client. The failure to critically review an AI-generated document submitted to a court or client certainly implies a lack of competency on the part of the attorney, among other things.

AI is here to stay. There are multiple companies offering programs to attorneys for the purpose of producing legal documents, and more products will continue to become available. Recently, the New Jersey Supreme Court Committee on Artificial Intelligence and the Courts issued guidance to attorneys on the use of AI. The committee described the use of AI as “unavoidable.” The committee referenced an attorney’s obligation under the New Jersey Rules of Professional Conduct, including the obligation to be accurate and truthful with the court, honest and candid, maintain confidentiality, and prevent misconduct.

An interesting question raised with the committee was whether an attorney must disclose to the court or to the client that AI was used with regard to a pleading or work product. The committee concluded that the lawyer need not disclose to the court when AI was being used, although the committee noted that the attorney must review the AI product for accuracy. However, there are trial-level judges in the federal system who have issued standing orders requiring the disclosure of the use of AI in documents filed in their cases.

The New Jersey committee also concluded that an attorney need not disclose to the client the use of AI in work product with exceptions. If the client asks if AI was used, there must be disclosure. Additionally, the client must be told that AI was used if the client cannot make an informed decision about any issue without knowing about the use of AI.

The duty to uphold a client’s confidentiality is a particularly thorny issue with regard to AI. When using AI the attorney has to input information into the program. The program is “learning” with each user’s input. The program is amassing information from every party inputting information. Therefore, there is potential for the unintended disclosure of confidential information. For example, when AI is used with regard to an intellectual property rights question, privileged or copyrighted information may be inputted as part of query to the AI. The same holds true if a user inputs names or other identifiable information about a client. Those types of information may appear in an AI-generated product for a different user.

So, where do we stand? The lesson I take from this is that technology is not to be used with impunity. An attorney should have a clear understanding of the potential problems that can accompany the use of these tools. Technology has introduced significant benefits into the practice of law and will continue to do so. However, those benefits are not to be used without careful consideration of the potential consequences.

Francis T. McDevitt, Esquire, is a founding member of Naulty, Scaricamazza & McDevitt, LLC and the former managing partner of the firm’s Marlton, New Jersey, office. He is president of the Villanova Law J. Willard O’Brien American Inn of Court.