Calling the AI Witness in Merger Reviews

This article was first published in Law360 on 11 December, 2025 . The article is available at: https://www.law360.com/articles/2420695

In merger control matters and beyond, the next evolution in defensible collection will hinge on proving artificial intelligence provenance with rigor equal to that used in data authenticity standards. In practical terms, AI platforms will need to be treated as new sources of electronically stored information, with retention settings and legal holds updated accordingly to prevent default system policies from automatically purging critical AI artifacts before they can be collected in a second request. Additionally, organizations may struggle to demonstrate defensibility in their processes and production sets if AI-generated messages become conflated with custodian communications.

Legal teams are likely to begin to see model-authentication language and provenance attestations appear in collection protocols for second requests and other merger clearance and competition enforcement inquiries. This new facet of discovery should be expected to develop similarly to how technical details like metadata previously became standard in these types of matters.

The question in merger clearance will no longer be merely: Who said it? With increasing generative AI adoption, that question is set to take on additional layers: Which model said it? Under what prompt? What version and with what audit trail?

Ultimately, organizations may need to treat AI engines themselves as quasi-custodians with discoverable model states, version histories, prompt logs and provenance artifacts. This shift represents a fundamental evolution in evidentiary practice and will require new protocols and new certifications.

In this Law360 article, digital forensics specialist and testifying expert Sean McDermott discusses these implications and some of the unique challenges that are expected to arise in second requests and merger clearance reviews.

Download “Calling the AI Witness in Merger Reviews” article here.