The Artificial Intelligence Blog

Earlier this spring, A Washington State Court Judge issued what is widely believed to be the first evidentiary decision regarding Artificial Intelligence. In ­­Washington v. Puloka, following a Frye hearing, the Judge excluded AI-enhanced video from being considered as evidence. The video originated from Snapchat, and was enhanced using Topaz Labs AI Video, which is a commercially available software program widely used in the cinematography community. The Judge was not persuaded by this widespread commercial adoption, and held that the relevant community for purposes of Frye was the forensic video analysis community – which had not accepted the use Topaz AI.

The opinion shows careful consideration of an issue of first impression. Notably, it was important to the Judge’s opinion that there was another version of the video (the original) that was available and usable – even if it was low resolution, with motion blur. Further, the expert who edited the video did not know the details of how the Topaz Labs AI program worked – that is, he was not sure whether it was generative AI, could not testify to the reliability of the program, and did not know what datasets it was trained on. A different result may prevail where there is no other alternative, and in a situation where there is more testimony regarding the operation of the AI system at issue.

These issues will continue to pop up in courts across the country, and may need to be dealt with in a systematic way to ensure greater consistency. For example, the Advisory Committee on Evidence Rules has been considering proposed amendments to Rules 901 and 702 that would directly address AI-generated evidence.

Duane Morris Takeaway: Artificial intelligence took the employment world by storm in 2023, quickly becoming one of the most talked about and debated subjects among corporate counsel across the country. Companies will continue to use AI as a resource to enhance decision-making processes for the foreseeable future as these technologies evolve and take shape in a myriad of employment functions. As these processes are fine-tuned, those who seek to harness the power of AI must be aware of the risks associated with its use. This featured article analyzes two novel AI lawsuits and highlights recent governmental guidance related to AI use. As the impact of AI is still developing, companies should recognize the types of claims apt to be brought for use of AI screening tools in the employment context and the implications of possible discriminatory conduct stemming from these tools.

In the Spring 2024 issue of the Journal of Emerging Issues in Litigation, Duane Morris partners Jerry Maatman and Alex Karasik and associate George Schaller analyze key developments in litigation and enforcement shaping the impact of artificial intelligence in the workplace and its subsequent legal risks. Read the full featured article here.