Author: eclinton

Another Lawyer Using AI To Draft A Brief Gets Embarrassed

Another Lawyer Using AI To Draft A Brief Gets Embarrassed

Once again, a lawyer has used generative AI to draft a brief, with embarrassing consequences. In Mid-Central Operating Engineers Health and Welfare Fund v. Hoosiervac, LLC SD Indiana 2025, the 2:24-cv-00326, a lawyer got into trouble for using Generative AI to draft a brief. The court that Rule 11 was violated and that there were violations of the Indiana Rules of Professional Conduct.

On October 29, 2024, attorney Ramirez filed a brief in support of Defendant’s Motion to Reconsider the Court’s Denial of Motion to Transfer. [Dkt. 65.] In that brief, Mr. Ramirez cited to In re Cook County Treasurer, 773 F.3d 834 (7th Cir. 2014)—a case the Undersigned was unable to locate. In response to the Undersigned’s Order to file a Notice with the correct citation, [Dkt. 82], Mr. Ramirez filed a Notice in which he stated that he was unable to locate the case, “acknowledge[d] that the referenced citation was in error,” “withdr[ew] the previously cited authority[,] and apologize[d] to the Court and opposing counsel for the confusion.” [Dkt. 86 at 1.]

On December 23, 2024, the Undersigned explained that “filing a brief with a non-existent citation falls far short of an attorney’s duty to the Court, his client, and opposing counsel.” [Dkt. 87.] Accordingly, pursuant to Federal Rule of Civil Procedure 11(c)(3), the Undersigned ordered Mr. Ramirez to appear in-person and show cause why he should not be sanctioned for violating Federal Rule of Civil Procedure 11(b). Id. In that Order, the Undersigned noted that a non-exhaustive review of Mr. Ramirez’s other filings in this case revealed citations in two other briefs that the Undersigned was unable to locate: Knoedler Manufactuers, Inc. v. Cox, 545 F.2d 1033, 1035 (7th Cir. 1976), cited in [Dkt. 39]; and Brown v. Local 58, IBEW, 628 F.2d 441 (6th Cir. 1980), cited in [Dkt. 52].

On January 3, 2025, the parties in this matter appeared by counsel for a hearing on the Order to Show Cause. [Dkt. 88.] Mr. Ramirez admitted that he had relied on programs utilizing generative artificial intelligence (“AI”) to draft the briefs. Mr. Ramirez explained that he had used AI before to assist with legal matters, such as drafting agreements, and did not know that AI was capable of generating fictitious cases and citations. These “hallucination cites,” Mr. Ramirez asserted, included text excerpts which appeared to be credible. As such, Mr. Ramirez did not conduct any further research, nor did he make any attempt to verify the existence of the generated citations. Mr. Ramirez reported that he has since taken continuing legal education courses on the topic of AI use and continues to use AI products which he has been assured will not produce “hallucination cites.” Mr. Ramirez agreed during the hearing that he did not fully comply with Rule 11, but he emphasized that at no point did he act in bad faith or proceed with malice.

The court recommended a sanction of $15,000, one for each of the briefs with fake citations.

The court also found three violations of the Indiana Rules of Professional Conduct.

At least three of the Indiana Rules of Professional Conduct are implicated here, and the Undersigned will address them each in turn.

A. Rule 1.1. Competence

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Ind. R. of Prof. Conduct 1.1. It is clear that Mr. Ramirez failed to provide competent representation when he submitted false legal bases to the Court. These actions flouted the requisite legal knowledge, skill, preparation, and especially thoroughness reasonably necessary for Mr. Ramirez’s representation of his client.

B. Rule 3.1. Meritorious Claims and Contentions

“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Ind. R. of Prof. Conduct 3.1. This Rule mirrors the requirements of Rule 11(b)(2), and likewise proscribes presenting unfounded legal bases. There is no merit in relying on non-existent cases, so Mr. Ramirez’s conduct clearly disregards this Rule.

C. Rule 3.3. Candor Toward the Tribunal

“A lawyer shall not knowingly: . . . make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” Ind. R. of Prof. Conduct 3.3(a)(1). It is undisputed that Mr. Ramirez made false statements of law to the Court when in three separate submissions he relied on at least three cases which do not exist. Moreover, Mr. Ramirez did so “knowingly”—he knowingly failed to fulfill his duty of verifying that the law he presented was “good law.” As such, the Undersigned believes that discipline for violation of Indiana Rule of Professional Conduct 3.3 is appropriate as well.

Conclusions: (a) Do your own work; (b) don’t use generative AI to draft briefs because it can hallucinate; (c) even if you use AI, make sure to check the end product against real cases.

Use of Generative AI Leads To An Order To Show Cause in Federal Court

Use of Generative AI Leads To An Order To Show Cause in Federal Court

This is the case of Coomer v. Lindell, No. 22-cv-01129, pending in federal court in Colorado. Mike Lindell’s lawyers used Generative AI to respond to a brief and filed it without cite-checking the brief. This District Court entered an order to Show Cause why they should not be sanctioned. Lawyers don’t understand that Generative AI will hallucinate cases if it cannot find the citations you want it to find. This is problem with Generative AI. It is also why AI is useful. This is a path towards creativity in AI. We can’t say it enough, “Don’t Do This!”

www.clintonlaw.net

Rule 11 Does Not Apply To Pre-Removal Pleadings

Rule 11 Does Not Apply To Pre-Removal Pleadings

Cases are often filed in state court and removed to federal court by a petition for removal. Can the defendant seek sanctions under Rule 11 for the pre-removal pleadings? Most Courts say “No.”

Rule 11 provides that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record[.]” Fed. R. Civ. P. 11(a). And by presenting such a document to the Court, “whether by signing, filing, submitting, or later advocating it,” an attorney certifies that to the best of his or her knowledge it is not presented for an improper purpose, its legal contentions are warranted, and its factual contentions or denials of factual contentions have support. Fed. R. Civ. P. 11(b). If a document violates one of these certifications, then the Court may sanction the attorney, law firm, or party. Fed. R. Civ. P. 11(c).

But “Rule 11 is an extraordinary remedy, one to be exercised with extreme caution.” Mason Classical Acad., Inc v. Arnn, No. 2:22-CV-513-JLB-NPM, 2023 WL 6196855, at *5 (M.D. Fla. Sept. 22, 2023) (citation omitted). This extraordinary remedy is inappropriate at this juncture for two reasons.

First, when a case is removed from state court (like here), “Rule 11 does not apply to pleadings filed before removal.” Worldwide Primates, Inc. v. McGreal, 26 F.3d 1089, 1091 (11th Cir. 1994). JM Family Defendants’ sanctions motion relies exclusively on the amended complaint filed in state court. (See, e.g., Doc. 48 at 13, 16 (reciting paragraphs of the amended complaint)). And, while post-removal advocacy can support Rule 11 sanctions, the Defendants’ motion does not rely on any of Plaintiff’s post-removal filings. This is problematic, as Rule 11 mandates that the sanction motion “describe the specific conduct that allegedly violates Rule 11(b).” Fed. R. Civ. P. 11(c)(2) (emphasis added).

The case is Lynch v. Filice, District. Court MD Florida 2025 2-24-cv-340-SPC-NPM. It is unpublished.

Edward X. Clinton, Jr.

No Case Ending Sanctions Where Plaintiff Sought to Comply

No Case Ending Sanctions Where Plaintiff Sought to Comply

In Greer v. Moon, District. Court, D. Utah 2025, the court denied a defense request for Rule 37 sanctions because the pro se litigant amended his disclosures in response to the court’s prior orders. The plaintiff’s Rule 26 disclosures were deficient.

The court explains: As to the first Woodworker’s factor, although Mr. Greer’s failure to properly disclose witnesses or evidence to Defendants is not harmless and has resulted in needless litigation and expenses, Defendants have not suffered the prejudice or surprise that Rule 37(c) exclusion contemplates, such as the introduction of new witnesses after the close of discovery, after expert reports and depositions are completed, and after dispositive motions have been filed.[11] Instead, the court is able to rectify Defendants’ needless expenditures for needless litigation by ordering Mr. Greer to pay those expenses. If Mr. Greer later attempts to introduce information or witnesses he failed to produce in initial disclosures, the court may address Rule 37(c) exclusion at that time. Presently, incurring expenses does not hinder Defendants from presenting their defense and, as discussed below, is curable by methods other than exclusion.

However, the court denied “case-ending” sanctions.

The court also declines to impose the “case-ending” sanctions Defendants request for Mr. Greer’s failure under Rule 26. The court warned Mr. Greer that if he failed to comply with the court’s order compelling production of the Rule 26(a) information, he may be subject to potential case-ending sanctions under Rule 37(b)(2).[16]Dismissing this case when costs and fees would rectify prejudice to Defendants would violate the clear preference to adjudicate cases on their merits.[17] That is especially true where, as here, Mr. Greer is proceeding pro se. Albeit imperfect, Mr. Greer has attempted to comply with the court’s order to provide initial disclosures to Defendants, which renders Rule 37(b)(2) sanctions unnecessary at this juncture.

Comment: pro se litigants are governed by the same rules everyone else is, but they have a more difficult time complying with those rules.

Repeated Failures To Appear In Court Provoke Sanctions

Repeated Failures To Appear In Court Provoke Sanctions

Webber v. Leson Chevrolet, Inc., E.D. Louisiana No. 22-910 is an example of repeated violations that provoked sanctions by the federal court. Sanctions were awarded based on Rule 16 and 28 U.S.C. §1927. The 1927 sanctions were based on repeated efforts to relitigate already resolved issues.

Against this backdrop, the Court turns again to Gorham’s record in this case. The first court-ordered conference Gorham missed in this case was August 16, 2023 — almost two years after being sanctioned $2,000 by Judge Lemelle in an effort to deter such future violations. As was the case with Judge Lemelle’s initial $200 sanction, his subsequent $2,000 sanction clearly did not have had the desired or intended effect, as counsel has now missed three more court-ordered conferences or hearings in this case (to go along with the four from Dunn).

Compounding these failures, Gorham continues to ignore the Court’s orders and directions concerning her ill-advised motion for sanctions and insists on continuing to aggressively litigate that motion and the issues raised therein, despite the Court very pointedly denying that motion and explaining at the June 20, 2024 hearing that her motion to reconsider would also be denied. (Rec. doc. 113).

Notably, the Court-ordered briefing in which Gorham was directed to address her non-appearances in this case was long on grievance and complaints about opposing counsel’s conduct and the Court’s treatment of her and very short on acceptance of responsibility, remorse, or anything approaching a mea culpa for routinely failing to appear.[5] She persists in re-litigating a losing cause (which consists entirely of attacks on opposing counsel’s professionalism), which requires opposing counsel to respond and, of course, requires the Court to continue to grapple with a denied motion.

Based upon all this, the Court finds that Gorham’s third non-appearance in this case is a violation of Federal Rule of Civil Procedure 16 and that a sanction is appropriate for that violation. Unlike Rule 11, Rule 16 proscribes certain acts regardless of purpose or motivation. Failure to attend a scheduled hearing falls within this category — no doubt serial failures qualify. Improper motive, bad-faith, even reckless behavior, is not a prerequisite for finding a violation of the Rule. So long as the court is convinced counsel or her office received proper and timely notice, a negligent failure to attend the scheduled conference amounts to a violation of the Rule.

In addition to this violation, the Court also finds that Gorham’s insistence on re-litigating the matters raised in her motion for sanction is a violation of 28 U.S.C. § 192 7, which provides, Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct. 28 U.S.C. § 1927. Gorham’s Motion for Sanctions was denied due to her own non-appearance at the hearing on that motion as well as on the merits. (Rec. doc. 100). At the oral argument on her “Motion for Objections to the Magistrate’s Order and Rule to Show Cause,” the Court made it abundantly clear that the time for trying to support those arguments had passed and warned counsel against continuing to lash out at opposing counsel. (Rec. doc. 113, passim). The Court even short-circuited Defense Counsel’s argument with this closing observation:

MR. BEEBE: Thank you, Your Honor. I’m attempting to avoid that we have any more vitriol.

THE COURT: I’ve just spent 15-20 minutes doing the same thing.

MR. BEEBE: Very good.

THE COURT: I feel like Ms. Gorham is hearing what I’m saying.

(Id. at 19) (emphasis added). The Court was wrong about that last bit, given that Gorham followed up immediately with yet another pleading doubling down on her attacks on counsel’s professionalism and taking the additional step of including declarations made under penalty of perjury repeating those same attacks.

This is all wasteful in the extreme. The Court finds that Gorham’s conduct along this continuum rises to the level of conduct that has unreasonably and vexatiously multiplied the proceedings, in violation of Section 1927.

Rule 37 Dismissal Affirmed by Ninth Circuit

Rule 37 Dismissal Affirmed by Ninth Circuit

In Jones v. Riot Hospitality Group, LLC 95 F.4th 730 (9th Cir 2024), Rule 37 caused the dismissal of an employment discrimination case. According to an expert report, the plaintiff deleted text messages with her coworkers from her phone. Plaintiff challenged the dismissal and challenged the admissibility of the report of the expert who examined her phone and concluded that text messages had been deleted.

Rule 37(e) applies when ESI “that should have been preserved in the anticipation 735*735 or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” If the district court finds the loss prejudicial, it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). But, if the court finds that an offending plaintiff “acted with the intent to deprive another party of the information’s use in the litigation,” dismissal is authorized. Fed. R. Civ. P. 37(e)(2).

The district court found that Jones intentionally deleted relevant text messages with co-workers from 2017 and 2018 and coordinated with her witnesses to delete messages from 2019 and 2020. “Drawing reasonable inferences from the circumstances,” the court found that Jones did so with the intent to deprive Riot of use of the messages in this suit. Jones, 2022 WL 3682031 at *6; see also id. at *10. The court also found that the deleted messages could not “be restored or replaced through additional discovery.” Id. at *5; see also id. at *8-9. Applying the five-factor test for terminating sanctions articulated in Anheuser-Busch, 69 F.3d at 348, the court found dismissal warranted. Id. at *11-13.

…

Jones’ argument that the district court abused its discretion in not holding a Daubert hearing is also unconvincing. District courts are not always required to hold a Daubert hearing to discharge their reliability and relevance gatekeeping duties under Federal Rule of Evidence 702. See United States v. Jawara, 474 F.3d 565, 582-83 (9th Cir. 2007). Although Daubert sets out factors for district courts to consider when determining whether expert testimony is admissible under Rule 702, they are “illustrative,” and “the inquiry is flexible.” Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017) (cleaned up). And, “Rule 702 should be applied with a liberal thrust favoring admission.” Id. (cleaned up). The record makes plain that Kuchta had extensive technical experience in computer forensics, including independent research in the type of mobile phone spoliation analysis he conducted in this case. And his methodology— comparing the volume of messages sent and received between mobile phone pairs over time and looking for digital artifacts of deletions—is sound. Jones makes much of Kuchta’s acknowledgment that there is no industry standard for analyzing text message deletions but gives no plausible reason to doubt the reliability of his opinions.

The result was that the Ninth Circuit affirmed the dismissal of the case.

Comment: Clients need to understand that they will not be allowed to proceed with a lawsuit where text messages have been deleted. It simply won’t work. The case will be dismissed.

Case Dismissed for Deleting Text Messages

Case Dismissed for Deleting Text Messages

In Jones v. Riot Hospitality Group, LLC 95 F.4th 730 (9th Cir. 2024), the plaintiff’s case was dismissed for her actions in deleting text messages. The reasoning:

Jones contends that the district court erred in finding intent because Kuchta could not confirm that every deletion of a text message was intentional or quantify the intentional deletions. But there was ample circumstantial evidence that Jones intentionally destroyed a significant number of text messages and collaborated with others to do so. As the district court noted, Jones could not explain why messages to other employees at the bar were selectively deleted in 2017 and 2018. With respect to the 2019 and 2020 messages, the court pointed out that “while much of the content of the deleted messages is unknowable,” a screenshot of a 736*736 message sent by a witness to Jones but missing from Jones’ phone in its original form, “shows that Plaintiff deleted at least one message that had a direct bearing on her case.” Jones, 2022 WL 3682031 at *10. Moreover, Jones and one of the witnesses obtained new phones shortly after they were ordered to hand over their devices for imaging. Neither Jones nor the witnesses produced the earlier phones for imaging, effectively preventing discovery of messages deleted from those phones. The court’s conclusion “that [Jones] affirmatively selected certain text messages for deletion while otherwise preserving text messages sent around the same time” is supported by the record. Id.

Second Circuit Affirms Rule 37 Dismissal

Second Circuit Affirms Rule 37 Dismissal

This case, Park v. Kim, 91 F.4th 610 (2d Cir. 2024) was decided in January 2024. The district court had dismissed the case under Rules 37 and 41(b) for willful failure to comply with discovery orders. Worse still, counsel for Park used artificial intelligence to draft the appellate reply brief and cited a case that does not exist.

The reply brief cited only two court decisions. We were unable to locate the one cited as “Matter of Bourguignon v. Coordinated Behavioral Health Servs., Inc., 114 A.D.3d 947 (3d Dep’t 2014).” Appellant’s Reply Br. at 6. Accordingly, on November 20, 2023, we ordered Park to submit a copy of that decision to the Court by November 27, 2023. On November 29, 2023, Attorney Lee filed a Response with the Court explaining that she was “unable to furnish a copy of the decision.” Response to November 20, 2023, Order of the Court, at 1, Park v. Kim, No. 22-2057-cv (2d Cir. Nov. 29, 2023), ECF No. 172 (hereinafter, “Response”). Although Attorney Lee did not expressly indicate as much in her Response, the reason she could not provide a copy of the case is that it does not exist — and indeed, Attorney Lee refers to the case at one point as “this non-existent case.” Id. at 2.

Attorney Lee’s Response states:

I encountered difficulties in locating a relevant case to establish a minimum wage for an injured worker lacking prior year income records for compensation determination…. Believing that applying the minimum wage to in injured worker in such circumstances under workers’ compensation law was uncontroversial, I invested considerable time searching for a case to support this position but was unsuccessful.

…

Consequently, I utilized the ChatGPT service, to which I am a subscribed and paying member, for assistance in case identification. ChatGPT was previously provided reliable information, such as locating sources for finding an antic furniture key. The case mentioned above was suggested by ChatGPT, I wish to clarify that I did not cite any specific reasoning or decision from this case.

Id. at 1-2 (sic).

All counsel that appear before this Court are bound to exercise professional judgment and responsibility, and to comply with the Federal Rules of Civil Procedure. Among other obligations, Rule 11 provides that by presenting a submission to the court, an attorney “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances… the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2); see also N.Y. R. Pro. Conduct 3.3(a) (McKinney 2023) (“A lawyer shall not knowingly: (1) make a false statement of … law to a tribunal.”). “Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, [and] legally tenable.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). “Under Rule 11, a court may sanction an 615*615attorney for, among other things, misrepresenting facts or making frivolous legal arguments.” Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013) (per curiam).

At the very least, the duties imposed by Rule 11 require that attorneys read, and thereby confirm the existence and validity of, the legal authorities on which they rely. Indeed, we can think of no other way to ensure that the arguments made based on those authorities are “warranted by existing law,” Fed. R. Civ. P. 11(b)(2), or otherwise “legally tenable.” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. 2447. As a District Judge of this Circuit recently held when presented with non-existent precedent generated by ChatGPT: “A fake opinion is not `existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law, or for establishing new law. An attempt to persuade a court or oppose an adversary by relying on fake opinions is an abuse of the adversary system.” Mata v. Avianca, Inc., No. 22CV01461(PKC), 678 F.Supp.3d 443, 460-61 (S.D.N.Y. June 22, 2023).

Attorney Lee states that “it is important to recognize that ChatGPT represents a significant technological advancement,” and argues that “[i]t would be prudent for the court to advise legal professionals to exercise caution when utilizing this new technology.” Response at 2. Indeed, several courts have recently proposed or enacted local rules or orders specifically addressing the use of artificial intelligence tools before the court.[3] But such a rule is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure that her submissions to the Court are accurate.

Attorney Lee’s submission of a brief relying on non-existent authority reveals that she failed to determine that the argument she made was “legally tenable.” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. 2447. The brief presents a false statement of law to this Court, and it appears that Attorney Lee made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented. We 616*616 therefore REFER Attorney Lee to the Court’s Grievance Panel pursuant to Local Rule 46.2 for further investigation, and for consideration of a referral to the Committee on Admissions and Grievances. See 2d Cir. R. 46.2.

Court Dismisses Case of Plaintiff Who Failed To Comply with Discovery

Court Dismisses Case of Plaintiff Who Failed To Comply with Discovery

In Countryman v. Vialpando, 2022-cv-000008, District court of Nevada, the plaintiff failed to answer discovery or sit for his deposition. That was enough for the district court which dismissed his case pursuant to Rule 37(d). The case was dismissed even though the court had no entered a prior order requiring plaintiff to comply.

Rudy Giuliani Sanctioned Under Rule 37

Rudy Giuliani Sanctioned Under Rule 37

Rudy Giuliani has been sanctioned under Rule 37 for numerous discovery violations in the Freeman v. Giuliani case. The Freeman case is a defamation case filed by Ruby Freeman, a Georgia election worker, who alleged that Giuliani defamed her in the press following the 2020 election. In July 2023, Giuliani conceded that he made false statements about the plaintiffs.

Rule 37 is used to obtain sanctions against parties that do not comply with discovery obligations. In Freeman, Giuliani was accused of failing to safeguard and produce electronically stored information (“ESI”). Under subsection (e) of Rule 37 a party is required to preserve ESI in anticipation of litigation. If a party fails to take reasonable steps to preserve the ESI, the opposing party may seek a variety of sanctions.

“Default judgment will be entered against Giuliani as a discovery sanction pursuant to Rules 37(e)(2)(C) and 37(b)(2)(a)(vi), holding him civilly liable on plaintiffs’ defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damages claims, and Giuliani is directed to reimburse plaintiffs for attorneys’ fees and costs associated with the instant motion.”

Giuliani appears to have taken a strategic default and made a decision to withhold discovery materials. Given the amount of litigation against Giuliani it may be difficult for plaintiffs to collect from him.

Ed Clinton, Jr.