Extract from Barnes & Thornburg LLP’s article “Changes Proposed to the Federal Rules of Evidence to Address AI Usage”
The U.S. Courts Advisory Committee on the Federal Rules of Evidence has offered proposed amendments to the rules of evidence to address the use of artificial intelligence (AI) in litigation. The proposed amendments would expand upon Rule 901 (Authenticating or Identifying Evidence) and would create a new rule – Rule 707, “Machine-generated Evidence.”
The proposed amendments are included in the Agenda Book for the Committee’s November meeting at pages 269-271.
Changes to Rule 901
Rule 901(a) provides that “to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Subsection (b) then provides specific examples of the types of evidence that satisfy the requirements of section (a).
The proposed amendments would add language to the list of examples that describes what is needed to demonstrate the authenticity of evidence that is “generated by artificial intelligence.” Under the amended rule, the proponent of such evidence would need to produce evidence that, among others “(i) describes the training data and software or program that was used; and (ii) shows that they produced reliable results in this instance.”
