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Federal Judge Issues Order on Use of Artificial Intelligence and Implications for Inadvertent Release of Proprietary Information

By Nithya Nagarajan & Jamie Shookman on June 16, 2023
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Judge Stephen Alexander Vaden of the Court of International Trade (“CIT”) issued an order on June 8, 2023 to address increasing concerns related to the use of generative artificial intelligence platforms in drafting documents that are publicly filed in the litigation process.  The order reflects a growing awareness of the novel risks associated with using artificial intelligence to draft court documents, including, as Judge Vaden notes, with respect to the inadvertent disclosure of business proprietary information.

Judge Vaden’s reasoning is that should an attorney utilize ChatGPT (or a similar platform) to assist in drafting documents submitted to the Court, the search terms used could contain business proprietary terms that were otherwise not released to the public as part of the litigation.  These platforms retain information in the search terms indefinitely as part of its “learning” process, and therefore any potentially business proprietary information could become public (whether intended or not).  Consequently, the information that was originally treated as business proprietary in litigation, and during the underlying administrative proceeding, would no longer be protected.

As a result, the order instructs practitioners in cases assigned to Judge Vaden who utilize artificial intelligence resources to assist in preparing briefs, or any other documents submitted to the Court, to provide the following:

  • A disclosure notice that identifies the program used and the specific portions of text drafted with the assistance of that program; and
  • A certification that the use of the program has not resulted in the disclosure of any confidential or business proprietary information to any unauthorized party.

The order also states that following such a disclosure, any party may file any motion provided for under the CIT’s rules to seek relief that it believes the facts disclosed warrant.

Judge Vaden’s order follows a recent requirement issued by U.S. District Judge Brantley Starr of the Northern District of Texas, which instructs litigants to certify either than no portion of any filing will be drafted by generative artificial intelligence, or that any language so drafted be checked for accuracy “by a human being.”   

Husch Blackwell continues to monitor developments relating to this issue.  In the meantime, for guidance or questions relating to current U.S. trade remedy laws and tariffs, companies can contact the Husch Blackwell’s International Trade and Supply Chain team.

Photo of Nithya Nagarajan Nithya Nagarajan

Nithya’s extensive background in U.S. trade issues spans 25 years and includes various roles in a number of federal government agencies, including the Department of Commerce Department of Justice, and the U.S. Court of International Trade. She assists clients with administrative and regulatory…

Nithya’s extensive background in U.S. trade issues spans 25 years and includes various roles in a number of federal government agencies, including the Department of Commerce Department of Justice, and the U.S. Court of International Trade. She assists clients with administrative and regulatory actions before the Department of Commerce, International Trade Commission and U.S. Customs and Border Protection (CBP) and defends clients in appeals before the Court of International Trade, Court of Appeals for the Federal Circuit, NAFTA panels and the World Trade Organization. In addition to her body of U.S. experience, Nithya is also well-versed in international trade issues in China and India.

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Photo of Jamie Shookman Jamie Shookman

Jamie’s experience representing federal government agencies in trade and customs matters helps clients navigate U.S. trade laws as they grow their businesses. Jamie’s practice draws on her extensive experience handling cases in the U.S. Court of International Trade and learning the inner workings

…

Jamie’s experience representing federal government agencies in trade and customs matters helps clients navigate U.S. trade laws as they grow their businesses. Jamie’s practice draws on her extensive experience handling cases in the U.S. Court of International Trade and learning the inner workings of the federal agencies involved. She primarily represents domestic manufacturers, advising on complex regulatory regimes, proactively assessing new trade programs, and handling litigation as it arises.

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  • Posted in:
    Technology and AI
  • Blog:
    International Trade Insights
  • Organization:
    Husch Blackwell LLP
  • Article: View Original Source

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