Artificial intelligence is rapidly transforming how information is created, shared and stored. In the litigation context, AI-generated images, videos, audio recordings, and written communications raise important questions about authenticity, reliability, and admissibility.

As deepfake technology becomes increasingly sophisticated, attorneys and courts may face growing challenges in determining whether digital evidence is genuine or has been manipulated. For parties involved in litigation, these developments underscore the importance of carefully scrutinizing electronic evidence before relying on it in court.

Although New York’s traditional rules regarding authentication and admissibility continue to apply, courts may increasingly encounter disputes involving AI-generated and AI-altered evidence as these technologies become more widely used.

What Are Deepfakes and Why Do They Matter in Litigation?

Artificial intelligence has made it possible to create highly realistic digital content that may be difficult to distinguish from authentic evidence. Common examples include deepfake videos that appear to show individuals saying or doing things that never occurred, AI-generated audio recordings that can mimic a person’s voice, synthetic images depicting fabricated events and even AI-generated emails, text messages and other documents.

As these technologies become more sophisticated, they present unique challenges in litigation because parties, attorneys, and courts may need to determine whether a piece of digital evidence is genuine or has been manipulated.

In disputes involving employment, business, family law, defamation, or other civil litigation matters, the authenticity of AI-generated content could become a critical issue affecting the admissibility, reliability, and persuasive value of evidence presented in court.

How AI Is Impacting Litigation

The emergence of artificial intelligence and deepfake technology has the potential to affect a wide range of litigation matters. In commercial litigation, fabricated emails, altered documents, or manipulated recordings could impact disputes involving property, tort, contracts, business transactions or other allegations of misconduct.

For example, employment litigation may involve AI-generated communications or recordings that appear to show discriminatory conduct, workplace harassment, or policy violations. In family law litigation, questions may arise regarding the authenticity of videos, audio recordings, text messages, or social media content offered as evidence in divorce or child custody proceedings. In real property disputes, AI-manipulated deeds, surveys, maps or other typical property records can be created to falsify claims of ownership. Defamation litigation may increasingly involve claims based on AI-generated content that falsely portrays an individual making statements or engaging in conduct that never occurred. Similarly, in personal injury litigation, manipulated photographs, videos, or other digital evidence could affect disputes concerning liability, damages, or the extent of a party’s injuries.

The Growing Role of Digital Evidence in Litigation

Emails, text messages, social media posts, surveillance footage, cell phone data, and electronic business records have become common sources of evidence in a wide variety of disputes. In many cases, digital evidence can provide a detailed record of communications, activities, locations, and transactions that may be relevant to the issues before the court.

As technology continues to evolve and artificial intelligence becomes more sophisticated, litigation involving digital evidence may require closer scrutiny of how information was created, stored, preserved, and ultimately presented. Questions regarding authenticity, reliability, and potential manipulation are likely to become increasingly important as courts and litigants navigate the growing role of electronic evidence in modern litigation.

Authentication: A Critical Issue in Modern Litigation

Authentication is a fundamental requirement in litigation and refers to the process of establishing that a piece of evidence is what the party offering it claims it to be. Before digital evidence can be admitted, courts generally require a sufficient showing that the evidence is genuine and has not been altered or fabricated.

Traditional methods of authentication may include witness testimony from someone with knowledge of the evidence, metadata reflecting when and how a file was created or modified, business records maintained in the ordinary course of operations, or digital forensic analysis conducted by qualified experts.

How AI Is Changing Litigation Over Evidence

As deepfake technology becomes increasingly sophisticated, parties may find themselves litigating not only what evidence shows, but whether that evidence is authentic in the first place. Questions may arise regarding whether a video or audio recording is genuine, whether an image has been digitally manipulated, whether an email or text message actually originated from the person alleged to have sent it, or whether artificial intelligence played a role in creating or modifying the content.

These issues can have significant implications for discovery, admissibility, and trial strategy, as courts may require additional evidence, expert testimony, metadata analysis, or digital forensic review to establish the authenticity and reliability of electronic evidence. As a result, attorneys and litigants must be prepared to carefully evaluate digital evidence and address potential challenges involving AI-generated or AI-altered materials throughout the litigation process.

Discovery Challenges in AI-Related Litigation

When questions arise regarding the authenticity of digital evidence, parties may seek access to original electronic files rather than screenshots or copies in order to examine the underlying data. Metadata analysis may become increasingly important, as it can provide information about when a file was created, modified, accessed, or transferred. In addition, parties must continue to preserve electronically stored information (ESI), including emails, text messages, documents, images, videos and other digital records that could be relevant to the dispute.

As a result, businesses and individuals involved in litigation should take care to implement appropriate litigation holds and evidence-preservation measures to avoid the loss or alteration of potentially relevant digital information.

Questions That May Arise During Litigation

A number of important questions may arise during litigation concerning the authenticity and reliability of electronic evidence. Parties may seek to determine whether a photograph, video, audio recording, email, text message, or other digital file has been altered or manipulated in any way.

Attorneys may investigate who had access to the file, when it was originally created, and whether any changes were made after its creation. Resolving these issues may require the review of metadata, witness testimony, digital forensic analysis, and other forms of evidence designed to establish the origin, chain of custody, and authenticity of the material.

Deepfakes and Evidentiary Disputes at Trial

One of the most significant challenges posed by artificial intelligence in litigation may arise when digital evidence is introduced at trial. As deepfake technology becomes increasingly sophisticated, parties may raise objections regarding whether a video, audio recording, image, email, text message, or other electronic evidence is authentic and accurately reflects real events.

Litigation may involve challenges to the reliability of digital evidence, requests to exclude materials suspected of being altered or AI-generated, and motions concerning whether the evidence satisfies applicable admissibility requirements. In some cases, courts may rely on expert witness testimony, digital forensic analysis, metadata review, and other authentication methods to determine whether the evidence is genuine and trustworthy. As AI technology continues to advance, evidentiary disputes involving deepfakes and other AI-generated content are likely to become more frequent and more complex.

The Potential Consequences of Using Altered Evidence in Litigation

The use of altered, manipulated, or AI-generated evidence in litigation can have serious consequences for both parties and their attorneys. If a court determines that evidence has been modified or presented in a misleading manner, the party offering the evidence may suffer significant damage to their credibility, potentially undermining other aspects of their case. Depending on the circumstances, courts may impose sanctions, exclude the questionable evidence from consideration, or issue adverse evidentiary rulings that negatively affect a party’s position.

Disputes regarding the authenticity of digital evidence may also increase litigation costs by requiring additional discovery, digital forensic analysis, and expert witness testimony.

These challenges can delay proceedings and complicate litigation strategy, particularly when significant questions exist regarding the reliability of the evidence. In some situations, the use of manipulated evidence may also raise concerns regarding attorney-client privilege and ethics for litigants and legal professionals.

How Businesses Can Protect Themselves During Litigation

Businesses can take several proactive steps to reduce the risks associated with digital evidence and artificial intelligence during litigation. One of the most important measures is preserving original electronic records, including emails, text messages, electronic documents, and other potentially relevant data. Organizations should also maintain clear document retention policies and ensure that employees understand their obligations regarding record preservation. When litigation is anticipated or pending, businesses may need to implement litigation holds promptly to prevent the deletion or alteration of electronically stored information.

Maintaining records that identify the source and history of digital evidence can also help establish authenticity if questions arise later in the litigation process. Additionally, businesses should exercise caution when relying on images, recordings, documents, or other materials that appear suspicious or may have been altered using artificial intelligence. Consulting experienced legal counsel early in a dispute can help ensure that relevant evidence is properly preserved, evaluated, and presented, while reducing the risk of discovery disputes or challenges to the authenticity of digital evidence.

When Should You Consult a Litigation Attorney?

Businesses and individuals may benefit from consulting a litigation attorney when questions arise regarding the authenticity, preservation, or use of digital evidence in a legal dispute. Early legal guidance may be particularly important when the authenticity of digital evidence is being challenged, when artificial intelligence-generated content could affect the outcome of a case, or when a deepfake video, audio recording, image, or document appears to depict misconduct or other relevant events.

A litigation attorney may also help when there are concerns that electronic evidence has been altered, manipulated, or improperly preserved, or when a party anticipates litigation and needs to ensure that relevant evidence is protected from deletion or loss. Because disputes involving digital evidence often become more complex as litigation progresses, seeking legal advice early may help identify evidentiary issues, preserve crucial information, and develop an effective litigation strategy before questions regarding authenticity, admissibility, or reliability become significant obstacles in the case.

Trust, but Verify: The Future of AI and Litigation

While AI tools offer valuable opportunities for efficiency and innovation, they also create new challenges involving evidence, discovery, and authenticity. As courts continue to confront questions surrounding deepfakes and AI-generated content, parties involved in litigation should recognize that verifying the reliability of digital evidence may be just as important as the evidence itself.

As artificial intelligence continues to change the landscape of litigation, consulting an experienced attorney can help ensure that digital evidence is properly evaluated, preserved, and presented.

If you are facing a litigation matter, the attorneys at Tully Rinckey are prepared to help protect your rights, advocate for your interests, and guide you through every stage of the legal process. Contact Tully Rinckey to discuss your legal options. Call 8885294543 or contact us online today for a consultation and get an advocate who will fight for your rights and help secure your future.

Matthew P. Ricci is a Partner in Tully Rinckey PLLC’s Latham office, where, in addition to litigation matters, he focuses his practice on federal sector labor and employment and New York State employment law. Matthew has experience litigating cases on behalf of employees at the U.S. Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights (NYSDHR), and in both state and federal courts.