Even Pro Se Litigants Are Using Artificial Intelligence And Citing Hallucinated Cases

In Kent Malone-Bey v. Lauderdale County School Board, 3:25-cv-380, the plaintiff was terminated an instructor by the defendant. He filed suit. At some point he filed a motion to disqualify the law firm defending the case. The motion was denied. The opinion offers another chapter in the AI hallucination saga.

The Court sua sponte addresses a separate issue: Plaintiff’s continued use of fake, nonexistent legal opinions in his filings before the Court. This practice unfortunately is not unique to the instant matter as the number of filings that include fictitious legal opinions is rising. This trend, perhaps, correlates to the frequency at which our society is embracing and utilizing generative artificial intelligence (“AI”) programs in everyday life, including legal matters. AI is certainly a tool capable of providing immense benefits and efficiency in the legal profession or in legal matters. Those benefits, however, are not without risk.

Starting with the obvious, it is well-known that AI can generate fake sources of information, commonly referred to as “AI Hallucinations.” Wadsworth v. Walmart, Inc., 348 F.R.D. 489, 493 (D. Wy. 2025). And individuals who use AI for legal research find that they are not immune from these hallucinations. Indeed, AI programs are known to hallucinate nonexistent cases. Sanders v. United States, 176 Fed. Cl. 163, 169 (2025). As AI programs advance, they only increase the difficulty in which users (and the courts) may determine whether a case provided by an AI program is in fact “hallucinated.”

That is because hallucinated cases look like real cases. They are identified by a case name, a citation to a reporter, the name of a district or appellate court, and the year of the decision. United States v. Hayes, 763 F. Supp. 3d 1054, 1065 (E.D. Cal. 2025). But, they are not real cases. These hallucinated cases are instead inaccurate depictions of information from AI models that suffer from incomplete, biased, or otherwise flawed training data. Wadsworth, 348 F.R.D. at 493. Thus, “[w]hen used carelessly, [AI] produces frustratingly realistic legal fiction that takes inordinately longer to respond to than to create. While one party can create a fake legal brief at the click of a button, the opposing party and court must parse through the case names, citations, and points of law to determine which parts, if any, are true.” Ferris v. Amazon.com Servs., LLC, 2025 WL 1122235, at *1 (N.D. Miss. Apr. 16, 2025).

Here, Plaintiff’s Brief [18] overflows with either citations to fake, nonexistent cases or existing cases with incorrect legal propositions, i.e., the hallmarks of AI hallucinations. It therefore appears that Plaintiff may have used generative AI to assist in legal research and drafting his motion briefs.

As just one example, Plaintiff cites Coleman v. Ret. Plan for Dist. Managers, 969 F.3d 142, 149 (5th Cir. 2020) for the proposition that courts may disqualify counsel to “preserve the integrity of the adversary process.” [18] at 2. But the Coleman case does not exist.[5] By citing (and quoting) a fake opinion,[6] Plaintiff undermines the very integrity that he urges this Court to uphold. Indeed, submitting fictitious cases and quotations to the Court degrades or impugns the integrity of the Court. Hayes, 763 F. Supp. 3d at 1054. Moreover, Plaintiff’s attempt to persuade the Court “by relying on [a] fake opinion[] is an abuse of the adversary system.” Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023) (emphasis added).[7]

Even if Plaintiff did not use AI to assist with citing legal opinions and holdings, he still must comply with Federal Rule of Civil Procedure 11. See Yazdchi v. Am Honda Fin. Corp., 217 F. App’x 299, 304 (5th Cir. 2007). Rule 11 provides that “[b]y presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party 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.” Fed. R. Civ. P. 11(b)(2).

By citing to fake legal opinions (or hallucinated legal holdings therein), Plaintiff not only wasted the Court’s time and judicial resources, but he also violated his Rule 11 obligations. See Benjamin v. Costco Wholesale Corp., 2025 WL 1195925, at *2 (E.D.N.Y. Apr. 24, 2025) (“an attorney [or pro se party] who submits fake cases clearly has not read those nonexistent cases, which is a violation of Rule 11 of the Federal Rules of Civil Procedure”) (emphasis in original). Plaintiff is therefore reminded of his obligations under Rule 11 as stated herein and advised that future filings before this Court must contain only accurate representations and citations. Additionally, Plaintiff is warned that future filings with citations to fictitious legal opinions and holdings or which do not otherwise comply with Rule 11 may result in sanctions, including but not limited to the striking of filings and the imposition of monetary penalties. Sanders, 176 Fed. Cl. at 170 (2025); Ferris, 2025 WL 1122235, at *2-3.

IT IS, THEREFORE, ORDERED that:

1. Plaintiff’s Motion to Disqualify Butler Snow LLP from Representing Individual Capacity Defendants [17] is DENIED; and

2. Plaintiff is reminded of his Rule 11 obligations as stated herein and warned that future filings with citations to fictitious legal opinions and holdings in filings before the Court, or which do not otherwise comply with Rule 11, may result in sanctions, including but not limited to striking Plaintiff’s filings and monetary penalties.

SO ORDERED.

Plaintiff’s Amendment of Complaint After Removal was insufficient to defeat diversity jurisdiction.

Plaintiff’s Amendment of Complaint After Removal was insufficient to defeat diversity jurisdiction.

Diversity jurisdiction requires that the plaintiff and defendant be citizens of different states and that the amount in controversy exceeds $75,000. Here the plaintiff sued State Farm for $100,000. State Farm removed the case. Plaintiff moved to remand it. The court denied the motion.

Plaintiff does not dispute that his initial pleading, which sought compensatory and punitive damages in excess of $10,000.00, as well as attorney’s fees, interest, and costs, satisfied the amount-in-controversy requirement for § 1332 diversity jurisdiction. See Compl. (Doc. No. 1-1) at 4; Notice of Removal (Doc. No. 1) at 10-12. Plaintiff argues that this case should be remanded to the state court, however, because his amended pleading establishes an amount in controversy that is explicitly “less than $75,000.00.” Am. Compl. at 2; see Pl.’s Mot. at 1-2. Defendant State Farm Auto responds that it is the demand in the initial pleading, not that of any subsequent amendment, that forms the appropriate basis for determining the jurisdictional amount in controversy. See Def.’s Resp. at 5.

In deciding whether diversity jurisdiction exists over a removed action, a court examines the pleading at the time of removal in order to determine the amount in controversy. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938) (“[T]he status of the case as disclosed by the plaintiff’s complaint is controlling in the case of a removal.”); see also Anderson-Thompson, Inc. v. Logan Grain Co., 238 F.2d 598, 601-02 (10th Cir. 1956). Courts have long held that post-removal events, such as amending a complaint to reduce the damages demand to below the jurisdictional minimum, do not destroy diversity jurisdiction. See St. Paul Mercury, 303 U.S. at 292 (“And though . . . the plaintiff after removal, . . . by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction.”); see, e.g., Redd v. Allstate Assurance Co., No. CIV-17-246-W, 2017 WL 11139926, at *2 (W.D. Okla. Aug. 23, 2017) (“Redd’s decision to amend his state court pleading[,] . . . reduc[ing] the amount recoverable below the jurisdictional amount, will not justify remand.” (internal quotation marks omitted)).

Accordingly, because Plaintiff’s initial pleading established an amount in controversy of at least $75,000, removal based on diversity jurisdiction was proper. And, because Plaintiff’s post-removal amendment reducing the amount in controversy to less than $75,000 does not destroy that jurisdiction, Plaintiff’s request that the matter be remanded to the state court shall be denied.

Comment: If you wish to defeat efforts to remove a case, pay careful attention to the claims set forth in the initial complaint. What counts for removal is the text of the pleading on the date the case is removed.

Sims v. State Farm, Case No. CIV-23-1022-G., Western District of Oklahoma. Unpublished Opinion.

No Diversity Jurisdiction Over $0 Arbitration Award

No Diversity Jurisdiction Over $0 Arbitration Award

Tesla Motors v. Balan, 134 F.4th 558 (4th Cir. 2025) is an appeal from an effort by Tesla to confirm an arbitration award against Balan. Balan made a defamation claim and received $0. Tesla sued to confirm and the District Court confirmed the award. The Fourth Circuit reversed on the ground that there was no diversity jurisdiction. The court explained:

Because a “look through” approach is prohibited under Badgerow [v. Walters, 596 U.S. 1, 142 S.Ct. 1310 (2022)] the facts establishing a jurisdictional basis must be present on the face of the application or petition to confirm an arbitration award. See id. at 16-17, 142 S.Ct. 1310. Put differently, facts establishing that the amount in controversy exceeds $75,000 must be present on the face of a Section 9 petition to confirm an arbitration award before a district court can assert diversity jurisdiction over the action. Id. at 9, 142 S.Ct. 1310; see also Sky-Med, Inc. v. Fed. Aviation Admin., 965 F.3d 960, 965 (9th Cir. 2020).

That requirement is not satisfied in this case. Appellees went to the district court to confirm a zero-dollar award dismissing Balan’s libel claims. On its face, a petition to confirm a zero-dollar award cannot support the amount in controversy requirement. Consequently, because jurisdictional facts establishing the amount in controversy requirement are not found on the face of the petition, and a court cannot “look through” the petition to the underlying substantive controversy under Section 9, we hold that the district court did not have subject matter jurisdiction.

Comment: under the decision Tesla can confirm the award in a state court with jurisdiction over Balan. Diversity jurisdiction requirements are technical and lawyers are often surprised by just how technical they are.

Ed Clinton, Jr.

http://www.clintonlaw.net

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.