e-Discovery Team

Ralph Losey. Published July 30, 2024.

No attorney ever wants to read something like this in a Court Order responding to their court filing:

Iovino’s objections are incorrect on the merits and appear to cite fictitious cases and made-up quotations. For the reasons discussed below, the court will overrule Iovino’s objections, affirm the entry of the protective order, and require Iovino’s attorneys to show cause why they should not be sanctioned under Federal Rule of Civil Procedure 11(c).

Iovino v. Michael Stapleton Assocs, LTD., No. 5:2021cv00064 (Doc, 177), 2024 U.S. Dist. LEXIS 131809 (W.D. Va., July 24, 2024) (U.S. District Court Judge Thomas T. Cullen).

Background on Karen Iovino v. MSA Security

Iovino v. MSA Security is a pending federal whistleblower case with discovery that has run amok for reasons unknown. The plaintiff, Dr. Karen Iovino, is a veterinarian who was employed by MSA Security. She alleges her employment was terminated because she reported mistreatment of the dogs MSA trained in explosive detection for the U.S. State Department, mismanagement, and other abuses. The State Department gives these canines to over 150 foreign governments to support the “War on Terrorism.” Dr. Iovino alleges that some of these foreign governments are known to mistreat the dogs. Federal Whistleblower Raising Questions About K-9s Deployed Overseas (NBC4 Wash, 11/26/19).

Fake Cases and Allegations of ‘ChatGPT Run Amok’

After two years of discovery disputes in this dog-eared case (sorry), the Magistrate and District Court judge were not surprised by yet another dispute regarding the plaintiff’s request to take six depositions. But they were surprised by Plaintiff counsel’s legal memorandum. Here is Judge Thomas T. Cullen’s order, (bold emphasis added to original):

For reasons that continue to confound the court, the parties have turned a straightforward case into a protracted discovery battle. Their dispute du jour centers on whether Iovino must comply with the United States Department of State’s (“State Department”) Touhy regulations1 to depose six current or former MSA employees about information related to MSA’s contract with the agency. MSA is a federal contractor that has an agreement with the State Department to train explosive detection canines.

. . . Following an extended briefing period and hearing, Judge Hoppe issued a Memorandum Opinion and Order granting MSA’s motion and entering the requested protective order. . . .

Iovino noted timely objections to Judge Hoppe’s decision on June 7, 2024, arguing that the protective order should be vacated because his determination that the State Department’s Touhy regulations apply to her deposition requests is contrary to law. (Pl.’s Objs. [ECF No.174].) Shockingly, her objections rely, in part, on citations to sources and quotations that appear not to exist. MSA highlighted those mysterious citations in its brief opposing Iovino’s objections. (Def.’s Opp’n Br. [ECF No. 175].) Iovino did not file a reply, leaving unrebutted the allegations of fabricated citations, and her objections are ripe for decision. . . .

Id. at pgs. 2-4

Judge Thomas T. Cullen concludes the opinion by discussing the sanctions issues triggered by Plaintiffs counsel’s alleged fabricated cases and fake quotations to real cases. (bold emphasis added)

B. Show Cause
Federal Rule of Civil Procedure 11(c) allows district courts to sanction parties that make court filings for an improper purpose or with frivolous arguments, as well as for other reasons. This, of course, includes when attorneys act in bad faith and engage in deliberate misconduct in an attempt to deceive the court. Parker v. N.C. Agr. Fin. Auth., 341 B.R. 547, 554 (E.D. Va. 2006), aff’d sub nom. Iles v. N.C. Agr. Fin. Auth., 249 F. App’x 304 (4th Cir. 2007). And it includes when attorneys do not take the “necessary care in their preparation” of court filings because such filings are an abuse of the judicial system, “burdening courts and individuals alike with needless expense and delay.” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 398 (1990). Indeed, a key purpose of Rule 11 is to incentivize attorneys “to stop, think[,] and investigate more carefully before serving and filing papers.” Id. (cleaned up). If counsel relies on artificial intelligence or other technology to draft a filing, the attorney is still responsible for ensuring the filing is accurate and does not contain fabricated caselaw or quotations. See, e.g., Mescall v. Renaissance at Antiquity, No. 3:23-cv-00332, 2023 WL 7490841, at *1 n.1 (W.D.N.C. Nov. 13, 2023) (citing Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 448–49 (S.D.N.Y. 2023)).

Here, Iovino’s brief objecting to Judge Hoppe’s ruling cites multiple cases and quotations that the court, and MSA, could not find when independently reviewing Iovino’s sources. Specifically, Iovino cites the following two cases that do not appear to exist: United Therapeutics Corp. v. Watson Labs, Inc., No. 3:17-cv-00081, 2017 WL 2483620, at *1 (E.D. Va. June 7, 2017), and United States v. Mosby, 2021 WL 2827893, at *4 (D. Md. July 7, 2021). (See Pl.’s Objs. at 6, 19–20.) She also cites a Supreme Court opinion and Fourth Circuit opinion that exist, but attributes quotations to those decisions that do not appear in them. (See id. at 17 (representing that Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019), includes the phrase “decided by necessary implication”), 19 (representing that Bostock v. Clayton Cnty., 590 U.S. 644 (2020), includes the phrase “make a mockery of the law”).) And she indicates that Menocal, a decision she puts great weight on in her objections, is a reported opinion at 113 F. Supp. 3d 1125, even though the reporter reference denotes a much earlier decision in the same litigation that had nothing to do with Touhy regulations. (See Pl.’s Objs. at 3, 11–13.)

MSA flagged each of these discrepancies in its opposition brief and posited that they were the result of “ChatGPT run amok.” (Def.’s Opp’n Br. at 2, 5 n.1, 11, 13.) Even though Iovino provided the court supplemental authority to support her objections after MSA raised this issue, she puzzlingly has not replied to explain where her seemingly manufactured citations and quotations came from and who is primarily to blame for this gross error. This silence is deafening.

Accordingly, to uphold the integrity of these proceedings and understand where the purportedly false references originated, the court will order Iovino’s counsel to show cause why they should not be sanctioned and/or referred to their respective state bars for professional misconduct.

Id. at pgs. 13-15.

Lessons of the Case

Sanctions are not an issue when AI is used properly. All you have to do is follow normal standards of reasonable care. Read the cases that the AI cites. Check the citations and case quotations contained in your memorandum before you file it with the court. Then you will not face Rule 11 sanctions, no matter how many hallucinations the AI may throw at you.

Also, when you get caught in a major oops as happened here, it certainly is not a best practice to simply ignore your mistake and hope it will all go away. The two attorneys representing Iovino apparently tried the ostrich strategy to no avail. Judge Cullen commented about that by saying their silence is deafening. Iovino v. Michael Stapleton Assocs, LTD., at pg. 15.

When you are caught citing fake cases and fake quotes, which defense counsel colorfully called, “ChatGPT run amok,” then you really do need to fess up and say something intelligent, humble and completely forthright. The result of the attorneys giving no response to the AI run amok allegations in this case is that District Court Judge Thomas T. Cullen gave the attorneys 21 days “to show cause why they should not be sanctioned and/or referred to their respective state bars for professional misconduct.” Ouch.

There is an old saying frequently used by lawyers to “let sleeping dogs lie,” but after opposing counsel alleges you have let ChatGPT run amok, the dog is obviously wide awake. Better to speak up immediately rather than risk facing a show cause hearing later.

When the attorneys respond to the show cause order on sanctions, one assumes they will not compound their error by trying the blame it on the AI defense. Artigliere and Losey., “My AI Did It!” Is No Excuse for Unethical or Unprofessional Conduct (Florida Bar accredited CLE course, 6/28/24). That has been tried and almost never works, nor should it. Attorneys have an ethical obligation of due diligence and competence. You cannot blame it on your AI anymore than you can blame it on your secretary, or paralegal, or associate. Rule Eleven is not so easily circumvented. But See Jessica R. Gunder, Rule 11 Is No Match for Generative AI 27 STAN. TECH. L. REV. 308 (2024).

According to Reuters who interviewed one of the two attorneys for the plaintiff, Thad Guyer, his sanctions defense may take a slightly different approach.

One of Iovino’s lawyers, Thad Guyer of T.M. Guyer & Friends, told Reuters on Thursday that he uses artificial intelligence, including tools made specifically for legal research, and validates all cases.

The “cases and misquotes were simply string citations, not major or dispositive cases,” said Guyer, who said as the lawyer who signed the filing he was speaking only on his own behalf. He said the two cases exist but were miscited.

Guyer asserted that under professional conduct rules he “has the right to rely on the GPTs” as he would a law student or other sources of information, without requiring “visual inspection” by the person that signs a filing. He said he will defend the conduct to the judge.

Sara Merken, Judge weighs sanctioning lawyers over ‘fictitious’ case citations (Reuters, July 25, 2024). Care to predict how that “visual inspection” defense will turn out?

Conclusion

The story of the troubles of the whistle blower veterinarian and her attorneys has not yet ended. It will be interesting to see what happens next.

Ralph Losey Copyright 2024 — All Rights Reserved

This entry was posted on Tuesday, July 30th, 2024 at 12:29 pm and is filed under AI Ethics, AI Instruction, Book, ChatGPT, Lawyers Duties, Spoliation/Sanctions, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.