Lori Shemka

Procedural takeaways when there are AI/fake-case concerns

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In less than a year after the ChatGPT usage in Mata v Avianca, Inc., SD NY (Docket No. 1:22-cv-01461) captured headlines, we’re starting to see a pattern and lessons for how adverse parties and courts are handling suspected fake-case court filings.

The pattern often follows the routine of other claims when reliability may be questioned (like forged signatures, altered records, or untruthful affirmations or affidavits).

To help parties and the bench, this post outlines and shares procedural examples of how parties and other courts have addressed times when there have been AI/fake-case concerns.

For opposing counsel/self-represented party:

1. With a written civil tone, outline the cases or other authority you are having a problem locating and ask for a copy.

2. Respectfully and firmly ask the person to provide a copy of the listed authority by a reasonable and specific deadline.

3. Keep a clean copy of the exchanged letters or emails in case they later need to be shared as exhibits.

For a court:

1. When a case citation listed in a filing cannot be located, order the party to submit a copy of the case by a specific date.

2. Alternatively, consider scheduling a show cause hearing to address any concerns about a problematic filing.

And, in the show cause order, require the filing party to provide the court (and other parties) with a copy of the referenced materials by a date before the hearing.

3. Be prepared to conduct a show cause hearing.

4. Instead of a show cause hearing, a court might have an oral argument scheduled and will issue an argument “focus” letter or order before the hearing directing counsel (or a self-represented party) to be prepared to discuss the non-existent cases.

5. In any concluding order or opinion, consider including a comparative table of the listed citations and their inaccurate nature, or any transcript colloquy with counsel from the hearing.

6. In any concluding order or opinion, consider not imposing sanctions for citing non-existent cases when there is no “bad faith” finding. Or simply to decide to strike the non-compliant briefing and rule against the party.

Appellants’ brief includes only a handful of accurate citations, almost all of which were of little use to this Court because they were not accompanied by coherent explanations of how they supported Appellants’ claims. No reply brief was filed. These deficiencies violate Federal Rule of Appellate Procedure 28(a)(8)(A). “When writing a brief, counsel must provide an argument which must contain ‘appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.’” Sekiya, 508 F.3d at 1200 (citing Fed. R. App. P. 28(a)(8)(A)). We are therefore compelled to strike Appellants’ brief and dismiss the appeal. See In re O’Brien, 312 F.3d 1135, 1136 (9th Cir. 2002).

In light of these standards, the Court is compelled to conclude that sanctions may not be imposed on Schwartz.

His citation to non-existent cases is embarrassing and certainly negligent, perhaps even grossly negligent. But the Court cannot find that it was done in bad faith.

Given Perry’s comments on the initial draft (as conveyed by Cohen), Schwartz understandably believed that the cases had come from her. As Schwartz himself concedes, it was plainly his responsibility to review the citations before putting them in a submission to the Court. But the Court credits his explanation for his failure to do so: that he had confidence in the accuracy of the cases given Perry’s reputation and that he never contemplated that the cases were non-existent. The Court also credits Schwartz’s representations — that inclusion of the cases in his motion was an “honest” and “unfortunate mistake[],” Schwartz Reply Decl. ¶¶ 3, 23; that he “had no intention to deceive the Court,” id. ¶ 3; and that he would have withdrawn the citations immediately if given the opportunity, id. ¶ 16 — and does not doubt the genuineness of his apologies and acceptance of responsibility.

Perry, in responding to Schwartz’s submission, asserts that “even a quick read” of the citations “should have raised an eyebrow.” ECF No. 104, at 5 & n.5. That may be so, but, at most, it supports a finding of extreme carelessness, not intentional bad faith.

And it is noteworthy that the Government’s lawyers — who presumably engaged in more than a “quick read” of Schwartz’s motion and, thus, saw the citations at issue before filing their opposition — did not “notice[] something awry” themselves. Id. at 5.