Federal Evidence Rulemaking On AI Hits Pause: An EDVA Update

In our March post, we observed that the United States District Court for the Eastern District of Virginia (“EDVA”) has not adopted any district-wide or judge-specific standing orders governing the use of generative artificial intelligence (“AI”) in court filings. Recent remarks by Judge Leonie M. Brinkema at the Federal Bar Association Northern Virginia Chapter’s Annual Luncheon and State of the Court Address on June 8, 2026, confirm that this case-specific approach will continue: the Alexandria Division does not plan to issue AI-specific standing orders, although lawyers who “ghost cite” cases should expect sanctions.¹ That approach is consistent with the national rulemaking process, in which the Advisory Committee on Evidence Rules (“Advisory Committee”) declined to advance rules governing AI-generated evidence.²

The Advisory Committee’s May 7 Decisions

The Advisory Committee considered two proposed additions to the Federal Rules of Evidence. Proposed Rule 707 would have applied Rule 702 Daubert-like reliability standards to machine-generated or AI-derived evidence offered without an accompanying expert witness.³ That standard requires the admission of evidence only if its proponent shows that it is based on sufficient facts or data, is the product of reliable principles and methods, and reflects a reliable application of those principles and methods to the facts of the case.⁴ Separately, proposed Rule 901(c) would have carved out alleged AI “deepfake” evidence from Rule 901’s authentication framework and created a burden-shifting framework for alleged deepfake fabricated evidence. If the opponent first made a threshold showing of AI fabrication, the proponent would then have had to prove authenticity by a preponderance under Rule 104(a), rather than satisfy Rule 901’s existing, lower “sufficient evidence to support a finding” standard.⁵

The Advisory Committee did not advance proposed Rule 707 to the judiciary’s Standing Committee, which reviews Advisory Committee proposals before any approved rule change proceeds to the Judicial Conference, Supreme Court, and Congress.⁶ The proposal had been published for public comment in 2025 and drew more than 70 written comments, as well as oral testimony in January 2026.⁷ The May 7 agenda instead framed the Committee’s options as revision, another round of public comment, or further study—not advancement.⁸

Similarly, the Advisory Committee declined to publish proposed Rule 901(c) for public comment.⁹ It has studied the proposal over six meetings and prepared, but not yet approved, draft text.¹⁰ The Committee also considered a Federal Judicial Center survey in which fifteen responding judges reported encountering deepfake issues, and a majority favored a rule.¹¹

Implications for EDVA Practice

That measured approach matters for EDVA practice. Chief Judge M. Hannah Lauck, who succeeded Chief Judge Mark S. Davis on December 4, 2025, sits on the Advisory Committee on Civil Rules, serves as that Committee’s Liaison to the Advisory Committee on Evidence Rules, and chairs the Civil Rules Rule 43/45 Subcommittee studying remote testimony.¹² Given Chief Judge Lauck’s involvement in those deliberations, the Advisory Committee’s decision not to advance AI evidence rules, and Judge Brinkema’s confirmation that Alexandria will not issue AI-specific standing orders, the EDVA is unlikely to adopt uniform AI rules ahead of the federal judiciary. For now, counsel practicing in the Rocket Docket should verify AI-assisted citations, follow case-specific orders, and raise AI reliability, authentication, and discovery issues early—including at Rule 26(f) and Rule 16 conferences.¹³

Our EDVA practice group follows federal rulemaking developments closely. Cailyn Reilly Knapp, who leads the group, spent four years clerking in EDVA and currently serves as the President-Elect of the Federal Bar Association’s Northern Virginia Chapter. Our team is available to help clients navigate AI-related procedural, evidentiary, and disclosure issues in pending or anticipated EDVA matters.

Key Takeaways

• On May 7, 2026, the Judicial Conference’s Advisory Committee on Evidence Rules declined to advance two draft rules aimed at addressing evidence derived from AI.
• With Chief Judge Lauck active in national rulemaking, and Judge Brinkema confirming that Alexandria will not issue AI-specific standing orders, the EDVA is unlikely to adopt uniform AI rules ahead of the federal judiciary.
• EDVA practice remains unchanged. There are still no district-wide or judge-specific standing orders; case-specific directives remain operative; and lawyers should verify AI-assisted citations, expect sanctions for ghost citations, and raise AI discovery and evidentiary issues early, including through protective order language where appropriate.

Footnotes

1 Remarks of Hon. Leonie M. Brinkema, Fed. Bar Ass’n, N. Va. Chapter, Annual Luncheon Meeting and State of the Court Address (June 8, 2026).

2 Advisory Comm. on Evidence Rules, Agenda Book, at 131 (May 7, 2026), https://www.uscourts.gov/sites/default/files/document/2026-05-evidence-rules-agenda-book.pdf.

3 Id. at 119.

4 See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

5 Advisory Comm. on Evidence Rules, supra note 2, at 29; see also Fed. R. Evid. 901.

6 Id. at 4; see also Jeff Overly, Judiciary Panel Punts AI Rules, Mulls Judges’ Survey Results, LAW360 (May 8, 2026, 12:07 AM), https://www.law360.com/articles/2473465/judiciary-panel-punts-ai-rules-mulls-judges-survey-results; 28 U.S.C. §§ 2071–2077 (outlining the federal rulemaking process).

7 Id. at 4, 16.

8 Id. at 4.

9 Id. at 5; Overly, supra note 6.

10 Id. at 5.

11 Id. at 215.

12 News & Announcements, United States Dist. Ct. for the E. Dist. of Va., New Chief Judge of the United States Dist. Ct. for the E. Dist. of Va., Effective Dec. 4, 2025 (Dec. 3, 2025), https://www.vaed.uscourts.gov/news/new-chief-judge-united-states-district-court-eastern-district-virginia-effective-december-4; Advisory Comm. on Evidence Rules, supra note 2, at 14, 55.

13 See Fed. R. Civ. P. 26; Fed. R. Civ. P. 16.