Smart technology has begun to infiltrate nearly every corner of society. While the legal profession managed to resist this intrusion relative to other industries for many years, it is now undeniable that machines frequently supplement lawyers and civil procedures such as discovery will need to adapt. As litigants, usually the well-resourced ones, increasingly utilize machine intelligence, concerns about accuracy and unfair advantage have sprung up on the other side of technology use. Information asymmetry is exacerbated when technology is accessible to only one party, and, consequently, curious litigants may seek discovery about the technology’s implementation in the context of the dispute. Thus, as law firms and corporate legal departments consider whether and how to integrate emerging technologies into their operations, it will be important to know their exposure to litigation. This paper provides suggestions for whether, and to what extent, parties should be able to obtain discovery about an opponent’s tools, including their machine inputs and outputs.

After reviewing the discovery process broadly, this paper will walk through three of the most common and relevant technologies, including technology-assisted review in discovery productions, predictive analytics for forecasting outcomes, and document generation for creating legal documents. If a party demands to see the details behind the use of one of these technologies, should the court compel production? This paper offers several considerations for judges in exercising their discretion to answer this question.