Suggested A.I. Rule – Suggested Amendment to Maryland’s Computer-Generated Evidence Rule

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Maryland courts, like others, are increasingly being faced with artificial intelligence. E.g., Artificial Intelligence in Maryland Courts (Aug. 24, 2025); “Ex-Pikesville High principal impersonated in racist AI case settles lawsuit” (Nov. 1, 2025). The Administrative Office of the Courts is conducting a pilot program. Maryland’s Artificial Intelligence Evidence Clinic Pilot Program (Mar. 10, 2026).

Maryland’s Standing Committee on Rules of Practice and Procedure has recommended an amendment to Maryland Rule 1-311 to address citation of “hallucinated” or fabricated cases. Maryland’s Proposed Anti-Hallucination Rule (Mar. 16, 2026). That issue has also been addressed in two recent decisions. Maryland Fake Citation Case – Court Issues a Warning – Referral to Atty. Grievance Comm’n. (Nov. 2, 2025); Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2026).

This blog focuses on a different issue. Maryland has long had a “computer-generated evidence” rule applicable to civil cases, Md. Rule 2-504.3.

“Just as the telegraph gave way to the telephone, the stagecoach gave way to the automobile, and the typewriter gave way to the word processor, so too will courtroom chalkboards, easels and blow-up placard charts give way to computer-generated exhibits.” Galves, 13 Harv. J. L. & Tech. at 300. In fact, some jurisdictions have amended their rules of civil procedure to facilitate the use of CGE’s in the courtroom. See e.g., Md. Rules 2-504.3.”

Com. v. Serge, 58 Pa. D. & C.4th 52, 84 (Com. Pl. 2001)(emphasis added). 

However, since it was adopted in 1998 and amended in 2009, no reported Maryland case has cited Rule 2-504.3. The rule “sets out procedures regarding the disclosure, discovery, and pretrial challenges applicable to computer animations or simulations.” The Honorable Paul W. Grimm (ret.), Claudia Diamond, “Low-Tech Solutions to High-Tech Wizardry: Computer-Generated Evidence,” Md. B.J., July/August 2004, at 5, 6. 

Rule 2-504.3 is a procedural rule; it does not address the substantive admissibility of such evidence.” Id. at *10. It “provides comprehensive guidance to the bench and bar regarding the use of animations or simulations as evidence at trial and the trial court’s handling of any dispute about such evidence.

Judge Grimm and Ms. Diamond summarized its operation. First, notice is required. Then an objection may be made.

The filing of an objection requires the court to hold a hearing to determine the admissibility of the evidence. The rule also permits the trial judge to appoint an expert to assist it in ruling on the objection and to assess costs and expenses to one or more of the parties.

If the evidence is ruled admissible, the party opposing it need not renew objections again at trial, as the earlier hearing preserves them for appeal. Likewise, if the evidence is excluded, the issue is preserved for appeal, and no objection at trial is needed.

The procedures of Rule 2-504.3 allow practitioners, as well as the bench, to take the time and expend the necessary effort to resolve what may be complex evidentiary issues deliberately– rather than hastily addressing them in the midst of trial.

Id. at *11.

In my opinion, the current Rule likely applies to evidence created using GenAI. This blog recommends an amendment to Maryland Rule 2-504.3 to make that explicit and to address what Maura Grossman, J.D., Ph.D., and the Hon. Paul W. Grimm (ret.) call “acknowledged” Generative A.I. evidence. See “Judicial Approaches to Acknowledged and Unacknowledged AI-Generated Evidence,” 26 Col. Sci. & Tech. L. Rev. 110 (2025).

This proposal borrows from a Maryland criminal statute addressing facial recognition technology, a form of AI. Maryland’s Facial Recognition Technology Statute (Aug. 14, 2025); Criminal Conviction Reversed After State Failed to Timely & Fully Disclose its Use of a Type of Artificial Intelligence (Aug. 11, 2025).

Further, this proposal borrows from “Artificial Intelligence (AI) and the Practice of Law,” by the Hon. Xavier Rodriguez, which is available at 24 Sedona Conf. J. 783 (2023). The Sedona Conference article suggests that rules of procedure should ensure that adequate deadlines are set for a Daubert hearing. Id. at 801.

Judge Rodriguez continues: “Further, a pretrial hearing will likely be required for a trial court to assess the degree of accuracy with which the AI system ‘correctly measures what it purports to measure’ or otherwise ‘demonstrates its validity and reliability.’” Id. at 803. Judge Rodriguez wrote that “AI evidence may require that the offering party disclose any training data used by the AI platform to generate the exhibit.” Id. at 802, as quoted in A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez (Sep. 27, 2023). This proposed amendment to the Maryland Rule calls for notice, disclosure, discovery, and provides for a pretrial hearing if there are objections.

This proposal is not a universal solution of all issues associated with GenAI. It will be most effective where the proponent “plays by the rules,” i.e., with “acknowledged” GenAI. By its terms, it would also address, and likely preclude admission of, “unacknowledged” GenAI evidence because failure to give notice would definitionally violate its terms. However, candidly, it would have less effect on the undisclosed GenAI, such as deepfakes, due to the difficulty in determining that “unacknowledged” GenAI is in fact AI-generated.

However, I suggest that this suggested amendment would be beneficial in addressing “acknowledged” GenAI. The fact that it does not solve every problem does not undermine its value.

Rule 2-504.3 addresses “Computer-Generated Evidence.” This proposal clarifies it to expressly encompass evidence created by GenAI. Its key features are that it requires prior notice of the use of a GenAI exhibit; disclosure; discovery; a pre-trial hearing; and, a court-appointed expert.

Proposed additional language to the current Rule is bold, italicized, and underlined. Minor deletions are marked as strikeouts.

RULE 2-504.3. COMPUTER-GENERATED EVIDENCE

(a) Definition–Computer-Generated Evidence. “Computer-generated evidence” means: (1) a computer-generated aural, visual, or other sensory depiction of an event or thing; and (2) a conclusion in aural, visual, or other sensory form formulated by a computer program or model, including as to both (1) and (2), without limitation, an image, video or animation, or audio recording that was created using Generative Artificial Intelligence. The term does not encompass photographs merely because they were taken by a camera that contains a computer; documents merely because they were generated on a word or text processor; business, personal, or other records or documents admissible under Rule 5-803 (b) merely because they were generated by computer; or summary evidence admissible under Rule 5-1006, spread sheets, or other documents merely presenting or graphically depicting data taken directly from business, public, or other records admissible under Rules 5-802.1 through 5-804.

(b) Notice: Use at Trial –

(1) Except as provided in subsection (b)(2) of this Rule, any party who intends to use computer-generated evidence at trial for any purpose shall file a written notice within the time provided in the scheduling order or no later than 90 days before trial if there is no scheduling order that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including (i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a)(1) or subsection (a)(2) of this Rule, (ii) a description of the subject matter of the computer-generated evidence, and (iii) a statement of what the computer-generated evidence purports to prove or illustrate; and

(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.

(2) Any party who intends to use computer-generated evidence at trial for purposes of impeachment or rebuttal shall file, as soon as practicable, the notice required by subsection (b)(1) of this Rule, except that the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used by a party only for impeachment of other evidence introduced by that party-opponent. In addition, the notice is not required if computer-generated evidence prepared by or on behalf of a party-opponent will be used only as a statement by a party-opponent admissible under Rule 5-803 (a).

(c) Notice: Use in Motions

(1) Any party who intends to use computer-generated evidence in a motion or response to a motion for any purpose shall file a written notice with the motion or response that:

(A) contains a descriptive summary of the computer-generated evidence the party intends to use, including (i) a statement as to whether the computer-generated evidence intended to be used is in the category described in subsection (a)(1) or subsection (a)(2) of this Rule, and, (ii) a statement of what the computer-generated evidence purports to prove or illustrate; and

(B) is accompanied by a written undertaking that the party will take all steps necessary to (i) make available any equipment or other facility needed to present the evidence in court, (ii) preserve the computer-generated evidence and furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and (iii) comply with any request by an appellate court for presentation of the computer-generated evidence to that court.

(C) if the computer-generated evidence is to be used in a motion, a responding party shall be permitted sufficient time under section (d) of this Rule for additional discovery relating to the admissibility of the computer-generated evidence. If the computer-generated evidence is to be used in a response to a motion, the moving party shall be permitted sufficient time under section (d) of the Rule for additional discovery relating to the admissibility of the computer-generated evidence.

(c) (d) Required Disclosure; Additional Discovery. Within five days after service of a notice under section (b) or (c) of this Rule, the proponent shall makethe original or an accurate duplicate of the computer-generated evidence available to any party. Notwithstanding any provision of the scheduling order to the contrary, the filing of a notice of intention to use computer-generated evidence entitles any other party to a reasonable period of time to discover any relevant information needed to oppose the use of the computer-generated evidence before the court holds the hearing provided for in section (e) (f)of this Rule.

(d) (e) Objection. Not later than 6021 days after service of a notice under section (b) or (c) of this Rule, a party may file any then-available objection that the party has to the use at trial of the computer-generated evidence and shall file any objection that is based upon an assertion that the computer-generated evidence does not meet the requirements of Rule 5-901(b)(9).¹ An objection based on the alleged failure to meet the requirements of Rule 5-901(b)(9)² is waived if not so filed, unless the court for good cause orders otherwise.

(e) (f) Hearing and Order. If an objection is filed under section (d) (e) of this Rule, the court shall hold a pretrial hearing on the objection. If the hearing is an evidentiary hearing, the court may appoint an expert to assist the court in ruling on the objection and may assess against one or more parties the reasonable fees and expenses of the expert. In ruling on the objection, the court may require modification of the computer-generated evidence and may impose conditions relating to its use at trial. The court’s ruling on the objection shall control the subsequent course of the action. If the court rules that the computer-generated evidence may be used at trial, when it is used, (1) any party may, but need not, present any admissible evidence that was presented at the hearing on the objection, and (2) the party objecting to the evidence is not required to re-state an objection made in writing or at the hearing in order to preserve that objection for appeal. If the court excludes or restricts the use of computer-generated evidence, the proponent need not make a subsequent offer of proof in order to preserve that ruling for appeal.

(f) (g) Preservation of Computer-Generated Evidence. A party who offers or uses computer-generated evidence at any proceeding shall preserve the computer-generated evidence, furnish it to the clerk in a manner suitable for transmittal as a part of the record on appeal, and present the computer-generated evidence to an appellate court if the court so requests.

Committee note: This section requires the proponent of computer-generated evidence to reduce the computer-generated evidence to a medium that allows review on appeal. The medium used will depend upon the nature of the computer-generated evidence and the technology available for preservation of that computer-generated evidence. No special arrangements are needed for preservation of computer-generated evidence that is presented on paper or through spoken words. Ordinarily, the use of technology that is in common use by the general public at the time of the hearing or trial will suffice for preservation of other computer- generated evidence. However, when the computer-generated evidence involves the creation of a three-dimensional image or is perceived through a sense other than sight or hearing, the proponent of the computer-generated evidence must make other arrangements for preservation of the computer-generated evidence and any subsequent presentation of it that may be required by an appellate court.

To be clear, this is my suggestion and it is not a current proposal to amend the Rule.

Notes

1. Rule 5-901(b)(9) addresses authentication by: “Evidence describing a process or system used to produce the proffered exhibit or testimony and showing that the process or system produces an accurate result.” It may be preferable to cite the authentication rule, Rule 5-901, in its entirety. ↩︎
2. Id. ↩︎

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.