Extract from Benjamin Joyner’s article “Is Gen AI’s ‘Da Silva Moore’ Moment Approaching?”
While legal practitioners are increasingly using generative artificial intelligence in discovery, some are wondering whether case law might develop explicitly addressing such techniques—and whether that case law is actually something they want. One example courts may look to as a way to address novel gen-AI powered discovery tools and techniques is the case law surrounding technology-assisted review (TAR).
In Da Silva Moore v. Publicis Groupe, U.S. Magistrate Judge Andrew Peck of the Southern District of New York explicitly approved the use of predictive coding in discovery. The opinion represented the first official green light of TAR, and served as a model for other jurisdictions while increasing the comfort level of many attorneys. Similar decisions drawing on Da Silva Moore followed in other jurisdictions overseas, such as Ireland and the United Kingdom.
Now, practitioners are asking whether a similar decision will be necessary to explicitly approve the use of gen AI in discovery, and what the implications of such a decision might be.
