The Expert RecordThe standard for expert witnesses using AI

The Standard · Clause 7 of 8

Clause 7: Contemporaneous record

Kept as you work, not assembled afterward.

44 matters in the record engaged itVersion 1.0
The clause, verbatim

Contemporaneous record. The expert maintains, as the work proceeds, a record of each system used, the purpose for which it was used, and what was done to verify its output. The record is made at the time and is capable of being produced.

The clause that makes the others provable

Sequence, non-delegation, verification and checkability are each things an expert either did or did not do, months before anyone asks. The log is the only artifact that says which. Nobody sees what it is worth until the day it is the only thing between the witness and a question with no other answer.

Contemporaneous means made at or near the time of the event, before its significance was known. That is where the evidentiary weight comes from, since the author had no reason to shape an entry whose importance had not yet appeared. Reconstruction is usually detectable. Rebuilt entries are uniform, explanatory and complete in exactly the places real logs are thin. Promising the log in the engagement letter, alongside the commitment in Clause 8, shows that keeping it was a practice adopted before anyone knew what it would contain.

Entries that hold up

An entry has seven fields: the date of the work; the task in a sentence; the tool, account and tier; the substance of what was asked; what was done to verify the output; the disposition (adopted, adopted after verification, set aside or superseded); and the paths to any script, export or list it refers to. A short header records why each tool was chosen for the matter. Days of substantive work with no tool are logged too.

The common failure is recording the use and stopping. "Used AI to check citations" tells a reader nothing. An entry stating that every citation was extracted to a list, each located at the issuing source, some corrected and some removed, with the list's file path, is the defense itself. Corrections are added as new dated lines rather than edits, and gaps are acknowledged rather than filled. Conclusions about the case, communications from counsel and speculation about anyone's conduct stay out. The log template gives the blank form.

Questions a log would have answered

In Riddle Aggregates (Tax Court rebuttal expert), the judge said on the record that she was not clear from the witness's answers what he had used to write his rebuttal reports, which cited sections of the Yellow Book that do not exist. The Commissioner withdrew both reports mid-trial, and no written order addresses the AI question. In Butler and National Disability Insurance Agency, the decisive question was who inserted a single phrase, and the reports lost weight partly because no record could settle it.

Villanueva v. Las Vegas Metropolitan Police Department shows the reverse value of organization. After its own in camera review, the district court divided an expert's ChatGPT history: case-law summaries were ordered produced as facts or data he considered, while his prompts, a deposition outline and draft output were protected. A record kept by purpose would have let the expert separate those categories himself.

Not a transcript, not a shadow report

The clause does not require transcribing every query. An entry covers an occasion of work, so an afternoon of searching is one line stating what was found, what was obtained and read, and what was cited. Nor does keeping a log create exposure that would otherwise be absent. The provider already holds a verbatim history in a form the expert cannot organize; the only choice is whether a second, orderly record exists alongside it. Session exports taken on a schedule help preserve that history, but they are snapshots without chain of custody, and they omit what was deleted.

The rules it sits beside

The Standard does not restate any court rule and does not depend on one. In United States federal courts, Federal Rule of Civil Procedure 26 requires disclosure of the facts or data an expert considered, and a contemporaneous record is how that question is answered. Other systems ask the same questions in their own terms, and the matters below include tribunals in several of them.

Matters in the record that engaged Clause 7

44 of the 103 matters in AI in the Courtroom engaged this clause. Each is listed with the sentence from its entry that says how. The mapping describes conduct, not blame, and each entry sets out the facts it rests on.

Expert witnesses and AI

  • Villanueva v. Las Vegas Metropolitan Police Department “Clause 7, contemporaneous record, is what would have let the expert separate the categories the court separated: research, deposition preparation and drafting.”
  • Watson Grinding explosion trial (3M expert) “The matter also shows Clause 7, contemporaneous record, operating in an unexpected direction.”
  • Bard Port Catheter MDL (El-Ghannam ChatGPT challenge) “The conduct engaged Clause 7 of the Standard, contemporaneous record, from the defending side.”
  • Conservation Law Foundation v. Shell (expert AI prompts) “Clause 7, contemporaneous record, is what makes a request like Shell's easy to answer.”
  • Riddle Aggregates (Tax Court rebuttal expert) “Clause 7, contemporaneous record, is what Judge Kerrigan was reaching for when she said she was not clear what the witness used to write the report.”
  • Landgericht Darmstadt expert fee decision “Clause 7, contemporaneous record, is engaged by what the court had to do instead: with no record of how the document was produced, it reasoned from the shape of the prose.”
  • In re Valsartan MDL (Dr. William Sawyer) “An expert who confirms each citation before signing, and records that step under Clause 7, avoids giving opposing counsel that line of questioning.”
  • Butler and National Disability Insurance Agency “Clause 7, contemporaneous record, is what would have answered the question Butler turned on.”
  • NSW Supreme Court Practice Note SC Gen 23 “The records and annexure requirement in paragraph 22 corresponds to Clause 7, contemporaneous record: the expert must keep a record of how the tool was used and put it before the court.”
  • Kohls v. Ellison “The court's suggestion that counsel ask witnesses about AI use points toward Clause 8, disclosure, and Clause 7, contemporaneous record, since an expert who has logged each use can answer that question precisely.”
  • Matter of Weber “Clause 7, contemporaneous record, follows directly.”

Fabricated citations and facts in filings

AI-generated and altered evidence

Judges, courts and AI

AI inside the courtroom

  • Arizona Supreme Court AI news reporters “Because every script is drafted and approved before it is voiced, the court can show at any later date who wrote the words and when they were approved, which is the purpose of a contemporaneous record, Clause 7.”

Rules, orders and guidance

Clause 6: Custody and confidentiality · All eight clauses · Clause 8: Disclosure

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