Protecting your business from legal and ethical risks involving artificial intelligence and data privacy

Artificial intelligence (AI) and data privacy issues continue to pose challenges across industry sectors. At the 2023 Product Liability Diversity & Inclusion Symposium, we discussed these and other important litigation trends facing the industry and how businesses can navigate the increasingly uncertain legal environment.

As we prepare for the third annual Symposium in October 2024, we are providing this concise summary of the thought-provoking discussions of the 2023 event.

Artificial intelligence: Preparing your offense to strengthen your defense

Although AI is a transformative innovation that has the power to reshape how companies conduct business, its (mis)use comes with legal and ethical risks. Addressing these risks was the central point of this roundtable discussion about the legal issues emerging from generative AI.

Bennett Borden and Breanna Fields, along with moderator Tony Sadek, discussed potential ways to offset such risks. The panel emphasized that thinking about this now is essential. AI-related litigation is not on the horizon – it is here and only expected to increase, and stands poised to upset many of the traditional doctrines governing product liability claims and defenses.

In particular, the panel discussed how modern courts are being forced to rethink the question “what is a product?” because AI’s use of algorithms potentially challenges the common doctrine that “software” is not a product for product liability purposes.

The panel also discussed some of the ethical implications stemming from a company’s use of AI, cautioning that while AI may be an attractive tool for aiding human decision-making in some contexts, it also requires careful attention to ensure data accuracy and prevent bias and discrimination. Using AI in hiring decisions, the panel noted, can be fraught with such pitfalls.

In general, the panel noted, the risks arising from use of AI may be mitigated by bringing in appropriate subject matter experts to conduct due diligence and monitor outputs and outcomes.

The panelists also talked about some of the legislative and regulatory efforts around AI. Legislators and regulators, they emphasized, face considerable challenges as they seek to address AI, simply because technology advances faster than the ability to promulgate new rules and policies. In this rapidly evolving landscape, the panelists emphasized, it is important for companies to monitor the evolution of these new rules and policies, on the state, federal, and international levels.

Finally, the panelists also hailed the promises of AI, including its ability to quickly parse through data or produce content in ways we have never imagined possible. However, with these great advancements also comes the dangers of unfairness, mistakes, and abuse. This is why the ethical deployment of generative AI should be top of mind as companies navigate this ever-evolving landscape.

Takeaway: Generative AI poses both opportunities and risks for industry, requiring careful attention to how and why it is used. To address the legal and ethical ramifications, organizations using generative AI should stay abreast of the changing policies and rules surrounding its use and create internal systems and procedures designed to minimize risk.

Data privacy and personal medical devices

Personal healthcare device data has become an integral part of medical care. One notable legal consequence: defendants can request and use this personal healthcare device data in personal injury cases to disprove liability and undercut requested damages.

In her presentation about the use of personal healthcare device data in the discovery phase, Stephanie Peatman highlighted the importance of using such data in litigation.

Health data derived from personal medical devices, she observed, is commonly used as a diagnostic tool, not least because the information it provides is more objective than first-hand accounts from patients. These devices have become so commonplace and reliable that many of them are now a qualified expense under healthcare Health Savings Accounts.

As the use of personal healthcare devices becomes more commonplace, so does the opportunity for litigants to request such data in litigation. Defendants, she said, should request digital healthcare device data to support their case: building a thorough record that supports tailored requests through investigative work to uncover device usage and aligning with experts capable of validating such data.

However, this process also may involve larger issues arising from the growing acceptance of personal medical devices.

Many such devices are now equipped with a share feature to allow users to provide their physicians, and even their friends, with real-time health updates. This data can be incorporated into medical records, which are generally discoverable in personal injury litigation. But, Stephanie noted, as users allow more data to be collected, and voluntarily share this data with others, they are undercutting their own objections of privilege, privacy, and relevance. That is, as societal dependence on the data from these personal medical devices becomes more prevalent, plaintiffs face a greater burden when challenging their production in litigation. Meanwhile, defendants should seek to obtain such data – conducting due diligence, crafting specific discovery requests, and consulting with experts – to overcome objections and challenges from plaintiffs.

Takeaway: Personal healthcare device data can be a valuable resource for defendants in litigation, but requires careful planning and strategizing to obtain and use effectively.

DLA Piper’s Product Liability Diversity and Inclusion Subcommittee is thrilled to once again host the annual Product Liability Symposium on Wednesday, October 23, 2024. Would you like to join us in October for our 2024 Product Liability D&I Symposium, offering more of these groundbreaking, thought-provoking discussions? If yes, please tell us where you’d like us to send your invitation, and use this brief survey to tell us what you are most excited to learn more about.