Courts, at both state and federal levels, are still working out how to address experts' AI use as a part of litigation. For example, only a handful of courts have, thus far, addressed what, if any, part of an expert's AI prompts and AI-related work product can enter the record and are doing so using existing procedural and evidentiary rules. Texas Professional Ethics Committee Opinion 705, issued in February 2025, applies existing Texas Disciplinary Rules of Professional Conduct directly to the use of generative AI by attorneys, and by extension, experts. (I have a whole presentation on this topic if you're interested!)

But changes may be coming. Last Thursday in Boston, the federal Advisory Committee on Evidence Rules held expert panels on two proposals. Advisory Committee on Evidence Rules, October 15, 2026 (available at https://bit.ly/4k6s9VG). The first proposal addressed an entirely new rule, Rule 707, that would require AI-generated conclusions offered without an expert to meet reliability standards for expert testimony. Here, panelists struggled with defining “AI-generated," as opposed to “ordinary uses of software,” in order to know when the new rule would even apply. https://bit.ly/3UE0LUK. The second proposal would amend Rule 901(c), to address concerns with hard-to-detect fake evidence ("deepfakes"). Representatives from OpenAI and Meta expressed concerns with authenticating fabricated audio and video. https://bit.ly/4yAxTeb. Yet the committee appears split, potentially because as of earlier this year, only 15 of 931 surveyed judges had reported a deepfake challenge. 

This week, on October 21, the Advisory Committee on Civil Rules will meet in Washington to consider whether Rule 11 needs an AI-specific certification. Agenda materials recommend against it, reasoning that the current rule already gives courts the tools they need. See https://bit.ly/4ia8rpE. But we'll have to see what develops from both committee meetings.

Until then, it's critical to understand how courts are applying the existing rules to work product from experts and lawyers alike, and we're here to help!