Keeping it AI-uthentic in court: Challenging falsified documents created using AI

Parties to litigation rely on documents, emails, contracts and records to establish facts before a court or tribunal. Judges rely on the parties and their lawyers to challenge falsified documents. However, the rising use of AI presents a significant cause for concern, enabling the production and manipulation of documents with ease. Perhaps even more concerning is the fact that the documents produced through AI can go largely undetected when tested through traditional verification methods. 

Types of false evidence 

There are various types of false evidence which range in their levels of complexity. These include: 

• Shallow fakes – such documents can be created using simple editing software and do not necessarily require the use of AI. While the document itself may be an authentic document, key details such as the date or terms within it may have been altered. 
• Deepfakes – such evidence is completely inauthentic and can only be created through the use of AI. This can include false videos, images and audio. Take, for example, the US case of Mendones v Cushman & Wakefield Inc in which the claimants submitted AI-generated videos of a woman providing oral evidence. 

Although AI is not always essential to falsify documents, the growth of AI means that such falsification can be carried out more efficiently and to a higher quality by non-experts through common software and applications. Therefore, with the high stakes involved in litigation, it may be become more appealing for parties to consider manipulating evidence in an attempt to boost their prospects of success.

Implications of submitting false evidence 

Where a claimant is established to have solely relied on falsified evidence, the other party may apply to strike their claim out, leaving the offending party liable for costs. If a court order or judgment is made on the basis of falsified evidence, then a party may apply to have that order or judgment set aside, or use the appeal route, in certain circumstances.

Additionally, the party will be in contempt of court where any falsified documents were accompanied by a statement of truth, which carries a maximum sentence of two years’ imprisonment or a fine, or both. In some cases, the intentional falsification of documents may lead to liability under the Fraud Act 2006, which carries a maximum prison sentence of 10 years.

How to spot falsified evidence 

Although identifying falsified documents can be difficult, there are several indicators that may point to a lack of authenticity, even in AI-generated documents: 

• Is the evidence too perfect or too good to be true? Where evidence seems overly convenient and aligns perfectly with the legal argument put forward by the party, it could be an indicator that it is inauthentic. 
• Is there an original source? Where there are not any native files, metadata or corroborating records, this could indicate that the document is inauthentic. 
• Does the document suggest it should be in the possession of both parties? Where the document in question appears to be one that both parties should have copies of but only one has a copy, this may indicate that it is inauthentic. 
• Is the backstory complex? Where a party provides over-complicated explanations as to why the original evidence is missing or unavailable, this may also indicate inauthentic evidence. 

Difficulties in challenging false evidence 

Under Part 32.19 of the Civil Procedure Rules, it is crucial that falsified evidence is identified and drawn to the attention of the court as soon as possible. A party will be deemed to admit that a document is authentic unless they serve a Notice to Prove seeking to prove the authenticity of that document at trial. Where a Notice to Prove is served, the burden is on the party relying on the document to prove that it is genuine. If a party believes that the inauthentic document resulted from deliberate forgery, they must plead this at the time of serving the Notice to Prove or in sufficiently good time to allow the challenged party to deal with the allegation.  

The recent case of Ndungu v SPG Ltd & Ors is representative of the difficulties involved in challenging the authenticity of documents. In this case, the claimant made allegations that the defendant had forged documents including minutes and an internal email. However, the court refused the challenge on the basis that the claimant had not provided sufficient evidence to establish a claim for forgery. Additionally, the claimant failed to serve a Notice to Prove or plead its allegations of forgery. The judgment highlights some key points to bear in mind when challenging authenticity: 

• Early action is essential – investigate the documents and serve a Notice to Prove promptly. This is of even more importance for harder to spot documents falsified by AI. 
• Allegations of forgery/fabrication must be pleaded – where a party wishes to allege deliberate forgery or fabrication this must be pleaded clearly and fairly in a statement of case. Simple criticism of evidence will not suffice. 
• Avoid ambush – courts will be critical of late attempts to raise challenges to authenticity which should have been raised during disclosure.