There's no doubt that artificial intelligence is doing more now than it has ever done before, and many businesses and individuals now rely on some form of A.I.
In the wide world of litigation, we've already seen an Alexa and other devices get harvested for data, and the number of times a smartphone's data has been used to hoist an unsuspecting petard-maker continues to grow. But what happens when a discovery request gets made to inspect an A.I. or robot interface?
Depending on who the adversary is, and the context of the litigation, you could be in for a big discovery battle, and, surprisingly, courts may not be so willing to help if you don't have a good reason.
Proportionality of Unrestricted Access
While the discovery rules generally allow for liberal discovery, when it comes to eDiscovery, and a robot or A.I. would clearly fall under that hub, courts are less inclined to allow unrestricted access to an adversary's system, especially if there are no reasons to believe they've been hiding anything. It's almost always going to be a question of proportionality.
One of the unanswered questions that a court will soon be faced with is whether a robot can be deposed, or actually take the witness stand. While clearly there is another way to extract data from a robot and present that data, when the merger of A.I. and robotics actually produces functional, Westworld-quality robots (or even just close to it), how will the courts deal with robot discovery? How will the court, and parties, ensure robots are telling the truth when queried? Rule 601 presumes that witnesses are persons.
Can You Depose a Robot?
At this stage, it would likely require a stipulation or might take a special motion, as well as a few grand worth of some experts of your own to ensure that the robot wasn't tampered with (if that's even possible) to make this a reality.
While a robot or program may be able to answer questions like a witness might, it's unlikely that a robot or machine could take the witness stand without some sort of legal framework to allow it, or all sorts of stipulation gymnastics and a willing (or curious) judge.
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