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Field Note: Building the Stool — How to Implement the AI Discovery Standards · AI Tools for Practicing Lawyers

• 0:03
  SPEAKER_00: Welcome to AI Tools for Practicing Lawyers.
• 0:07
  SPEAKER_00: Practical, no-nonsense guidance to help attorneys put AI power to work in their practice right now.
• 0:15
  SPEAKER_01: In the episode we just recorded with Heather, episode 008, I talk about emerging standards for using AI in discovery.
• 0:25
  SPEAKER_01: And I developed the idea of a three-legged stool for assessing whether the workflows that you're using are going to comply with the emerging standards that are articulated pretty well in that Kansas case of Jeffries versus Harsco, which is a mass tort case where discovery issues came up regarding the use of AI tools.
• 0:52
  SPEAKER_01: The three-legged stool that I talked about, one leg is the vendor to make sure that you're using a tool that's capable of satisfying that standard.
• 1:04
  SPEAKER_01: It's a closed system, there's no training of models on your client's data.
• 1:09
  SPEAKER_01: You can explain what happened to the data and how that data is in a secure space.
• 1:15
  SPEAKER_01: We talked about how certain people have to have access to it, and you need to define the universe of those people who do have access.
• 1:25
  SPEAKER_01: It's got to be a tool where you can delete the items pretty easily and safely at the end of the engagement.
• 1:37
  SPEAKER_01: So one of the things we talked about was there's kind of a magic word, which is enterprise.
• 1:43
  SPEAKER_01: If you're looking at a tool that's on the enterprise level, you're probably okay with that tool.
• 1:51
  SPEAKER_01: Doesn't mean that you're okay with the protocols.
• 1:53
  SPEAKER_01: We're going to get to the rest of those protocols in just a minute, but you're probably okay with that tool.
• 1:59
  SPEAKER_01: And all of the big players have enterprise level tiers.
• 2:04
  SPEAKER_01: ChatGPT certainly has it.
• 2:06
  SPEAKER_01: Google has it, Claude has it, even Grok has it.
• 2:11
  SPEAKER_01: Grok gets a little defensive when you suggest that it can't be used for serious legal work.
• 2:17
  SPEAKER_01: It has an enterprise level.
• 2:19
  SPEAKER_01: They wouldn't tell me what the cost of the enterprise level is, but that's something that you have to talk about.
• 2:26
  SPEAKER_01: But it claims to be competitive.
• 2:28
  SPEAKER_01: And my guess is it is competitive.
• 2:30
  SPEAKER_01: Their business level, which doesn't quite go as far as the enterprise level, right now in early 2026, it's about 30 bucks per license per month, which is pretty reasonable.
• 2:42
  SPEAKER_01: The Gemini tool uh says that it you can get to these uh AI discovery protocols for$36 a month.
• 2:51
  SPEAKER_01: So that's pretty reasonable.
• 2:53
  SPEAKER_01: And and something I feel like I need to emphasize is if you don't like the tool, they don't usually force you into an annual contract.
• 3:04
  SPEAKER_01: You could probably do it for a month and get out.
• 3:07
  SPEAKER_01: Sometimes they'll give you better pricing if you pay annually up front.
• 3:11
  SPEAKER_01: That's become a pretty common process and sales method in the entire tech world.
• 3:17
  SPEAKER_01: So if you want to save some money, you could pay for the annual.
• 3:21
  SPEAKER_01: But if you're just experimenting and trying to find the right tool for you and your firm, do the monthly, and if it doesn't work for you, cancel it.
• 3:28
  SPEAKER_01: It's not that big of a deal.
• 3:30
  SPEAKER_01: Now, so that's the first leg, and I think it's the easiest leg to meet because you're looking for that word enterprise, and you know from the protocols that you have to have certain abilities connected to that tool.
• 3:49
  SPEAKER_01: So you're looking for an enterprise level tool, you're gonna have to bite the bullet and spend the money for that higher level.
• 3:57
  SPEAKER_01: If you're using a tool that's a free tool, or the pro tool, or the plus tool, or even the business tool, that that's probably not gonna be good enough for these purposes.
• 4:13
  SPEAKER_01: You're gonna have to bite the bullet and pay for the enterprise tool.
• 4:16
  SPEAKER_01: So that's leg one, that's the vendor leg.
• 4:19
  SPEAKER_01: Then there's the IT leg, which is the configuration tool.
• 4:23
  SPEAKER_01: So the configuration tool is you're gonna climb into the settings, you're going to upload the protocols after you've bought this new tool, and you're going to ask the tool how to configure the settings, and you may have to upload screenshots to get you there.
• 4:42
  SPEAKER_01: You don't have to do this.
• 4:44
  SPEAKER_01: If you have an IT vendor or somebody in-house that knows how to do this stuff, you could just turn it over to them and say, look, I need you to configure this in conformity with the protocol that I'm going to give you.
• 4:59
  SPEAKER_01: And presumably your IT consultant will be able to do that for you.
• 5:05
  SPEAKER_01: It shouldn't be a really hard process.
• 5:09
  SPEAKER_01: You're just talking about toggling on a few different switches in your settings.
• 5:14
  SPEAKER_01: You got to make sure that you tell the software it's not used by other models for training.
• 5:24
  SPEAKER_01: Sometimes that's a setting that it comes into enterprise level by default.
• 5:28
  SPEAKER_01: Sometimes you have to turn that on.
• 5:31
  SPEAKER_01: You have to be able to talk about which members of your firm have access to this tool for this purpose.
• 5:41
  SPEAKER_01: That might be something you have to do in the settings.
• 5:44
  SPEAKER_01: You want to make sure that the discovery materials that you're uploading are deletable at the end of the engagement, that you actually do that.
• 5:54
  SPEAKER_01: That also may be something you have to turn on in the settings.
• 5:58
  SPEAKER_01: I'm a fan, uh, I like to climb under the hood and do it myself.
• 6:03
  SPEAKER_01: And I like to interact with the AI by uploading screenshots.
• 6:07
  SPEAKER_01: But Heather made a really great point in the episode that you shouldn't use AI to verify that your configuration is correct.
• 6:18
  SPEAKER_01: Do you want to take a screenshot?
• 6:20
  SPEAKER_01: You do want to upload that screenshot of when you finished with the configuration.
• 6:25
  SPEAKER_01: And if you want to verify it with another AI tool, you could do that.
• 6:30
  SPEAKER_01: Or you could just send your screenshot with the tool, with the protocols to your IT consultant and ask them to send you an email establishing that it does satisfy the protocols.
• 6:44
  SPEAKER_01: Then you want to take that email, you want to take that completed configuration screenshot, save it in a centralized location.
• 6:51
  SPEAKER_01: So that satisfies the first two legs of the three-legged stool.
• 6:56
  SPEAKER_01: The third leg is really kind of the hardest one because this is the leg that deals with the lawyer's responsibilities.
• 7:06
  SPEAKER_01: And for this, I have some deliverables that we've placed on the website that you can download for free and it will help you satisfy the lawyer leg of the three-legged stool.
• 7:22
  SPEAKER_01: And the first one is a proposed form of order.
• 7:25
  SPEAKER_01: If you're doing litigation federal courts or state courts, most of these courts do have a discovery process where an order is going to be entered in federal court, it's the Rule 27 order that is going to lay out discovery processes.
• 7:45
  SPEAKER_01: With the help of Claude, I created a proposed form of order that hits everything that was discussed in the Kansas case so that the judge and the opposing party will see that you've thought this through and will be able to adopt this really it's a stipulated protective order regarding the use of AI tools for discovery materials.
• 8:12
  SPEAKER_01: And that order pretty much speaks for itself.
• 8:14
  SPEAKER_01: One of the requirements of the Kansas case, the Jeffries case, is that parties have an opportunity to object to a proposed use of AI relative to discovery materials.
• 8:29
  SPEAKER_01: So I worked with Claude to create a notice of intent to use discovery materials.
• 8:35
  SPEAKER_01: And that has some blanks for a number of days.
• 8:39
  SPEAKER_01: I would put seven days before a party has an opportunity to object.
• 8:44
  SPEAKER_01: And if they don't object, then you have the right to use that AI tool for discovery.
• 8:50
  SPEAKER_01: For me, the notice of intent could be served at different times.
• 8:55
  SPEAKER_01: You could serve it with the complaint, right?
• 8:57
  SPEAKER_01: Or if you're representing the defendant, you could serve it with the answer.
• 9:02
  SPEAKER_01: Or if you're going to file a motion to dismiss, there's no reason to file it with the motion because you're presuming that the case is going to be dismissed.
• 9:10
  SPEAKER_01: And if you win on the motion to dismiss, case is over.
• 9:12
  SPEAKER_01: And if you lose on the motion to dismiss, then you're going to go into the discovery process.
• 9:17
  SPEAKER_01: And that would be a reasonable time to serve the notice of intent.
• 9:22
  SPEAKER_01: You could also provide for serving the notice of intent to use AI for discovery materials in connection with the 26F process.
• 9:32
  SPEAKER_01: That's up to you.
• 9:33
  SPEAKER_01: But you are going to want to serve that.
• 9:36
  SPEAKER_01: And the document that is downloadable from the website will satisfy that requirement.
• 9:42
  SPEAKER_01: Another important deliverable is the protocol itself.
• 9:47
  SPEAKER_01: And that has been set up as part of the 26F process.
• 9:52
  SPEAKER_01: It's a very detailed protocol.
• 9:54
  SPEAKER_01: It's perfect for use with AI tools because the AI tools will be able to immediately discern the protocol and what's required by it.
• 10:04
  SPEAKER_01: And I think that's a valuable deliverable for you to download and have in your arsenal of documents to help bolster your use of AI to do discovery.
• 10:15
  SPEAKER_01: And then finally, there's the template that we have.
• 10:20
  SPEAKER_01: That is a log.
• 10:21
  SPEAKER_01: It gives you a place where you can talk about what tool you've used.
• 10:27
  SPEAKER_01: It gives you an opportunity to attach the data processing agreement that the vendor is going to issue, they call that the DPA.
• 10:39
  SPEAKER_01: It provides for you downloading the DPA from whatever vendor you settle on and attaching that as an exhibit to this log or this template, because even though you may never have to present this document ever, but it's a document that you're going to keep in the event that a judge or the opposing party challenges your use of AI to process the discovery.
• 11:09
  SPEAKER_01: So there's a table that we include, and the table tells you, all right, so this is how we used the discovery, this is the tool we used, this is the prompt we used, although you don't need to use every prompt, but it's valuable to have a log of that.
• 11:29
  SPEAKER_01: You can talk about the output that you got from it.
• 11:32
  SPEAKER_01: And these can be generic.
• 11:35
  SPEAKER_01: I used Clawed Enterprise to analyze these 5,000 documents.
• 11:42
  SPEAKER_01: I asked it to give me a summary of each document.
• 11:45
  SPEAKER_01: I asked it to create a timeline of the facts, and my outputs are consistent with those requests.
• 11:52
  SPEAKER_01: I think that's good enough for you to satisfy that requirement.
• 11:56
  SPEAKER_01: But you do need to keep a log of who is authorized to use these AI tools for discovery.
• 12:04
  SPEAKER_01: That's all included.
• 12:05
  SPEAKER_01: There's a certification that your use of the AI tools for discovery was consistent with the Jeffries case.
• 12:16
  SPEAKER_01: I put that in at the end just so that there's a reminder for you to keep in mind that this is why we're doing all of these things and jumping through these hoops.
• 12:25
  SPEAKER_01: My feeling is whatever AI tool you're using, you should have a log like we have made available for you from the deliverables page, because we're at a place in history where AI is suspicious and you need to be defensible with it.
• 12:44
  SPEAKER_01: And if you've done all of these things, if you have the right tool and you've got that DPA attached to it that shows how that vendor is going to be managing your data.
• 12:57
  SPEAKER_01: And you've got that screenshot and the email from your IT person that says it is configured consistently with that protocol that you've downloaded.
• 13:07
  SPEAKER_01: And then you've got that template that you have filled out and that you have certified.
• 13:12
  SPEAKER_01: I think you're going to be able to, first of all, sleep better at night.
• 13:16
  SPEAKER_01: And at the very least, you'll be able to say, judge, here's the Jeffries versus Harsko case.
• 13:23
  SPEAKER_01: This is the protocol that that case created.
• 13:27
  SPEAKER_01: This is how we have followed that protocol.
• 13:30
  SPEAKER_01: And then, at very least, you'll have a very reasonable argument to support your use of those AI tools relative to this discovery issue.
• 13:43
  SPEAKER_01: Claude tells me that I should be a little bit more proactive about asking listeners to share these episodes, which I'm hoping provide value for practicing lawyers who want to either introduce AI into their practices or do better practices relative to their use of AI.
• 14:09
  SPEAKER_01: And in these particular episodes, episode 008, and this field note, if you know a lawyer who's maybe not using AI properly and you're aware of it, or is a Flintstones level lawyer, and you have the idea that they are going to maybe want to up their level and get into the Simpsons level, even if they're never going to get to the Jetsons level, please share these field note at episode 008 and these deliverables because I do believe that this is the future of our practice, and we're all better off practicing on a more competent and safe level.
• 14:50
  SPEAKER_00: That's it for today's episode of AI Tools for Practicing Lawyers.
• 14:55
  SPEAKER_00: Thanks for listening.
• 14:56
  SPEAKER_00: We'll see you next time.