Tuesday, 26 November 2024 On Friday 22 November, the Supreme Court of New South Wales released Practice Note SC Gen 23 - Use of Generative Artificial Intelligence (SC Gen 23), a prescriptive series of requirements and expectations placed on practitioners and parties when it comes to the use of Generative AI (‘Gen AI’) in legal practice. Gen AI has the potential to significantly disrupt the judicial system for better and worse, and in outlining its expectations, the Court seeks to mitigate well-publicised risks and ensure a common standard of use and understanding. The provisions of the SC Gen 23 likely to receive the most attention prohibit the use of AI when generating content for affidavits, witness statements, and expert reports (without leave), and an affirmative statement that Gen AI has not been used for such a purpose. Ensuring individuals are solely responsible for the positions they bring before the court is important, and whilst the prescriptive nature and specifics of the guidance will be the subject of discussion, the Court’s intention is clear and understandable. However, one separate but notable section provides for certain classes of documents to be subject to a ‘General prohibition’ on Gen AI: Information subject to non-publication or suppression orders, the implied (Harman) undertaking not to use information produced under compulsion for any purposes extraneous to the proceedings without the leave of the Court, material produced on subpoena, or any material that is the subject of a statutory prohibition upon publication must not be entered into any Gen AI program. Since its release, discussions of this provision have raised a variety of questions, concerns, and interpretations. At a minimum, this passage creates confusion and requires practitioners to interpret and define their way around this blanket ban, while at most it appears to entirely prevent parties from using generative AI document review applications to assess, categorise or review documents produced from other parties. In June I wrote of how such Gen AI applications and workflows were crucial to the efficiency of future litigation, and how at least one platform, RelativityOne, was successfully and responsibly demonstrating their potential. This position was emboldened by the Victorian Supreme Court’s guidelines for the ‘Responsible Use of AI in Litigation’. These guidelines, more general and overarching than a Practice Note, encourage the cautious, transparent and responsible adoption of AI, as opposed to excluding entire use cases from consideration. Beyond applying a handbrake on recent developments in discovery, this provision creates an access to justice issue. Consider a class action, or an employment dispute where an affected plaintiff(s) with few documents to discover are presented with a significant volume of discovery by a defendant corporation. Gen AI document review technology would present a significant opportunity for such material to be assessed more quickly and cost-effectively by the legal advisors of a relatively resource-poor plaintiff, reducing costs and expediting court timelines. Whilst SC Gen 23 contains a stated exclusion for applications which generate chronologies from original source documents, there is no such exclusion for applications which assist in document review. As the Supreme Court’s primary mechanism for cautioning practitioners on the risks of Gen AI, it is unclear why chronology applications are excluded given they have the potential to create the same accuracy and confidentiality risks as any other deployment of Gen AI. Excluding one but not the other may seem like an oversight, however the extensive consultation undertaken in preparation of the note could indicate this choice is by design. We may gain more clarity when the Chief Justice and Principal Registrar provide their briefing on the Practice Note on 2 December. The Supreme Court’s decision to embed in a Practice Note a proscriptive stance on what it describes as a ‘rapidly developing’ topic risks potentially leaving gaps in its guidance, and stifling the adoption of innovations designed to improve efficiency in litigation. Whilst the Court has committed to periodically reviewing the Note, the existing potential prohibition of a significant and current use case, by design or not, shows they will have their hands full keeping guidance on AI usage clear and current. Practice Note SC Gen 23 - Use of Generative Artificial Intelligence (SC Gen 23) can be read here.