The Expert RecordThe standard for expert witnesses using AI

The Standard · Clause 8 of 8

Clause 8: Disclosure

Said at retention, honored on request.

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

Disclosure. The expert states at retention that the use of systems will be disclosed and the record produced on request, and does so when asked by retaining counsel, by an opposing party through proper process, or by the tribunal.

A commitment made before it costs anything

On the first day of an engagement the expert has no view, no draft and nothing to protect, so a promise to disclose system use and produce the record on request is neutral. Six months later, with a report nearly written and counsel's preferences known, the same promise reads as a concession, and it will read that way to a jury if it is made under pressure. That is why the book settles this clause and Clause 6 in the engagement letter before any material arrives.

The reported matters point the same way. Experts have kept their opinions after errors were found and after acknowledging extensive tool use. The worst outcomes came when a witness could not explain the work, or told a story that later changed. An original lapse is survivable. Concealing it is not.

How much the report itself says

The clause does not require cataloguing every use in the report. What the report says scales with reliance. A tool used only to locate sources, which the expert then obtained and read, needs one sentence describing that kind of use. Reliance on a tool's analysis calls for a description of the work. When what a tool produced is itself evidence in the case, the full exchanges belong in the report. Whatever the report says, the contemporaneous log carries the whole account.

"On request" has a defined meaning: retaining counsel, an opposing party through proper process, or the tribunal. A discovery request is never answered directly. It goes to retaining counsel, who decides what is responsive, protected and produced.

Candor and denial in the record

In Lnu v. Blanche (Ninth Circuit suspension), two attorneys whose immigration briefs contained fabricated cases first called the problems typographical and denied at oral argument that AI was involved. The published order imposed $2,500 on each, a six-month suspension from practice before the court and a two-year certification requirement. The panel placed the breach precisely: "the rules are not violated at the point of research and drafting, but at the point of signing and filing." The entry identifies the denial as what separated this result from a fine.

In re Prince Global Holdings (Sullivan & Cromwell) shows the other course. A law firm wrote to the bankruptcy court identifying the errors in an emergency motion, including AI hallucinations, in an attached schedule and filed a corrected motion with a redline the same day. No sanction had been reported as of September 2026. Disclosure did not cure the failure to verify, which the firm acknowledged, but it gave the court a complete account. In Villanueva v. Las Vegas Metropolitan Police Department, by contrast, an expert's ChatGPT use surfaced only at deposition, after a subpoena for everything he had considered.

Where a forum asks for more

The Standard sets a floor, not a ceiling. Some courts require more, and earlier. The NSW Supreme Court Practice Note SC Gen 23 bars generative AI in preparing an expert report without prior leave, and where leave is granted requires the report to identify the parts so prepared and to annex a record of how the tool was used. That is stricter than the Standard, and an expert in that court meets the practice note first. Certification rules and judges' standing orders are collected in the guide to AI disclosure and certification rules. Retaining counsel identifies which apply in a given matter.

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 and Federal Rule of Evidence 702 set the disclosure and reliability questions that an expert's AI use will be asked about. 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 8

32 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

Fabricated citations and facts in filings

AI-generated and altered evidence

  • TRAX International Corp. v. United States “Clause 8 of the Standard, disclosure, is the first clause TRAX engages: AI outputs made during the procurement surfaced only after the protester pressed for them, and the government offered what the court called "a shifting and, at times, inaccurate account" of who saw them.”
  • Fry v. Fry (Claude upload and sealing) “The certification engages Clause 7, contemporaneous record, and Clause 8, disclosure, together.”
  • United States v. Heppner “It also bears on Clause 7, contemporaneous record, and Clause 8, disclosure.”

Judges, courts and AI

AI inside the courtroom

Rules, orders and guidance

Clause 7: Contemporaneous record · All eight clauses

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