US judicial panel tweaks amicus brief disclosure rule, seeks public views on AI

By Nate Raymond

June 10 (Reuters) - A U.S. judicial panel on Tuesday moved to increase disclosure of who finances friend-of-the-court briefs filed by advocacy groups to influence litigation and advanced what would be the federal judiciary's first nationwide regulation of AI in the courts.

After years of debate, the U.S. Judicial Conference's Committee on Rules of Practice and Procedure during a meeting in Washington, D.C., voted to finalize a new disclosure requirement governing the funding of amicus briefs that fell far short of the broader reforms Democratic lawmakers argued were needed.

That new rule would require the filer of an amicus brief to name any donor who earmarked more than $100 for the preparation of the brief if that person or entity had been a member of the organization filing it for less than 12 months.

Amicus brief filers formed in the last year must disclose the date they were formed, with the goal of addressing the concern that an entity was created just for that purpose, said U.S. Circuit Judge Allison Eid, chair of the Advisory Committee on Appellate Rules.

The new rule built on an earlier disclosure requirement, one that Eid said many were not aware of, that could be evaded if a brief's financier simply became a member of the group filing it around the same time the financier made a contribution.

Eid described it as a "modest tweak to an existing rule" rather than a major change, after her panel, which makes recommendations to the larger committee, in April voted 5-4 against proceeding with a broader proposal opposed by the U.S. Chamber of Commerce and other frequent filers of amicus briefs.

That proposal, approved by the committee last year to receive public comment, would have required amicus briefs to disclose if a party or its counsel in a given case contributed 25% or more of the organization's annual revenue.

The panel's decision to abandon that provision has prompted criticism from U.S. Senator Sheldon Whitehouse, who, beginning in 2019 with other Democrats, started introducing bills to regulate amicus briefs, prompting the judiciary to consider a rule.

Democrats argued greater disclosure was needed to expose how special interests can secretly disguise their advocacy for causes in cases by funneling donations through non-profits that file amicus briefs.

The rule now goes the Judicial Conference, the judiciary's top policymaking body, for its review. It will then go onto the U.S. Supreme Court and, if it concurs, will take effect unless Congress acts to prevent it.

At Tuesday's meeting, the panel also voted to seek public comment on a proposed rule that would regulate the introduction of artificial intelligence-generated evidence at trial, which U.S. District Judge Jesse Furman said was necessary to address concerns about the reliability of such evidence.

Under the proposal, AI and other machine-generated evidence offered at trial without an accompanying expert witness would be subjected to the same reliability standards as expert witnesses, who are governed by Rule 702 of the Federal Rules of Evidence. The rule would exempt "basic scientific instruments."

Furman, who chairs the Advisory Committee on Evidence Rules, cited the potential for AI to analyze stock trading patterns or determine whether a work was substantially similar to copyrighted material as types of machine-generated evidence that could be introduced through a lay witness.

U.S. District Judge John Bates, the outgoing chair of the Committee on Rules of Practice and Procedure, called it "a good initial shot at that subject." Only the U.S. Department of Justice opposed the proposed rule, which it argued was overbroad.

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