Hamilton County Tackles Use of AI in Court Filings

July 1, 2024

The Hamilton County Court of Common Pleas has approved for publication and comment Proposed Local Rule 49, entitled “Use of Artificial Intelligence in Court Submissions.”

Practice in the Hamilton County Court of Common Pleas is governed by the Ohio Rules of Civil Procedure, the Court’s Local Rules, and Judges’ and Magistrates’ Standing Orders.

Because Durst Kerridge regularly handles commercial litigation cases in Hamilton County, often as Ohio local counsel, we closely monitor all local rule changes and other court developments. Previously, we wrote about the recent institution of the Commercial Docket, a major development for Cincinnati business litigation attorneys. (You can read about that here and here.)

Here is what attorneys in Cincinnati need to know about Proposed Local Rule 49.

(A) Purpose and Scope

Section A provides:

This rule is established to govern the use of artificial intelligence (AI) technologies by attorneys and/or parties in the preparation and submission of materials to the Hamilton County Court of Common Pleas. It aims to ensure the ethical use of AI and maintain the integrity of evidence.

(B) Definitions

The proposed Rule includes two defined terms. Note how broad and all-encompassing the definitions are:

  • Artificial Intelligence (AI): Defined broadly to include “[a]ny technology that employs machine learning, natural language processing, or any other computational mechanism to simulate human intelligence.” This includes technology used for “document generation, evidence creation or analysis, and legal research.”
  • AI-Assisted Material: Defined to mean “[a]ny document or evidence prepared with the assistance of AI technologies.”

Lexis and Westlaw are increasingly utilizing AI technologies to improve their legal search capabilities. So a strict interpretation of proposed Rule 49 would appear to dictate that any court submission for which basic legal research was employed beyond simply ascertaining or reviewing procedural or local rules would come within the purview of the Rule. Even Microsoft Word’s Spellcheck feature would potentially be included.

(C) Disclosure of AI Assistance

The proposed Rule would require attorneys and parties to disclose any use of “AI-assisted technology” in the “creation or editing of any document or evidence submitted to the court.”

Note that “AI-assisted technology” is not one of the defined terms under Section (B). However, it appears safe to assume that the Rule would require, at a minimum, that any party filing “AI-Assisted Material,” i.e., a pleading, motion, opposition, disclosure, affidavit or evidentiary material prepared with any AI assistance, must make the required disclosure.

That disclosure must:

  • Be made at the time of submission.
  • Include a general description of the AI technology used.
  • Specify the role of AI in the preparation of the materials.
  • Be in the form of a certification attached to the document or evidence, including the above-listed information and certifying that the attorney has reviewed and approved the AI-assisted material.

Arguably, this part of the proposed Rule could create tension with the attorney-client privilege and work product doctrines.

Say an attorney uses an AI service to facilitate the review of thousands of documents received in discovery, conducts legal research using the most bells-and-whistles version of Lexis or Westlaw, and later drafts and files a motion for summary judgment, attaching relevant discovery documents. Would the filing party be required to disclose the use of Westlaw or Lexis (or a lesser known competitor product), AI discovery software, and maybe even Microsoft Word?

Such disclosures could reveal strategic information that would not otherwise be known to the opposing party, which might be useful. I have to wonder if the purpose of the Rule could be served by simply requiring a disclosure that, to the extent any AI was used in connection with the filing, the attorney has reviewed and approved the AI-assisted material?

(D) Responsibility and Review

Despite the use of AI, attorneys and parties remain ultimately responsible for the accuracy, relevance, and appropriateness of all materials submitted to the court – as those attorneys in New York found out the hard way. Filing parties must:

  • Thoroughly review all AI-assisted materials to ensure compliance with legal and ethical standards.
  • Adhere to the Ohio Rules of Professional Conduct, which mandate competence, diligence, and supervision.

(E) Sanctions

Violations of the proposed Rule may result in sanctions against the filer under Rule 11, Rule 37, and presumably the court’s inherent power.

About Durst Kerridge

Durst Kerridge is an Ohio-based civil litigation boutique that practices extensively in Ohio’s state and federal courts, including the Hamilton County Court of Common Pleas. We are committed to staying at the forefront of new developments in the courts in which we practice. To schedule a consultation, call Durst Kerridge at (513) 621-4999 or contact Alex J. Durst or Paul R. Kerridge directly.

Alex J. Durst

Alex J. Durst is a civil trial attorney with over a decade of experience handling commercial and complex civil litigation matters on behalf of clients across a wide range of industries, with an emphasis on financial services litigation and high-dollar-value breach of contract claims.

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