Wilner wasn’t fully satisfied with the firm’s response that the two errors were “inadvertently included” in the brief and sought more detail.
“I didn’t discover that Plaintiff’s lawyers used AI—and re-submitted the brief with considerably more made-up citations and quotations beyond the two initial errors—until I issued a later OSC [order to show cause] soliciting a more detailed explanation. The lawyers’ sworn statements and subsequent submission of the actual AI-generated ‘outline’ made clear the series of events that led to the false filings. The declarations also included profuse apologies and honest admissions of fault.”
Judge: Don’t outsource research to AI
The lawyers involved “collectively acted in a manner that was tantamount to bad faith,” Wilner wrote. He criticized Copeland’s undisclosed use of AI products, saying that “no reasonably competent attorney should out-source research and writing to this technology—particularly without any attempt to verify the accuracy of that material.”
Wilner also criticized the K&L Gates lawyers for failing to check the validity of the research sent to them. “[W]hen I contacted them and let them know about my concerns regarding a portion of their research, the lawyers’ solution was to excise the phony material and submit the Revised Brief—still containing a half-dozen AI errors,” Wilner wrote. Taken together, the lawyers’ actions “demonstrate reckless conduct with the improper purpose of trying to influence my analysis of the disputed privilege issues.”
The sanctions issued by Wilner affect the plaintiff’s case. “I have struck, and decline to consider, any of the supplemental briefs that Plaintiff submitted on the privilege issue,” Wilner wrote. “From this, I decline to award any of the discovery relief (augmenting a privilege log, ordering production of materials, or requiring in camera review of items) that Plaintiff sought in the proceedings that led up to the bogus briefs.”
Wilner ordered Ellis George and K&L Gates to pay $26,100 to the defense as reimbursement for fees paid to an arbitration and mediation firm and another $5,000 to cover some of the defense’s other costs. Wilner decided not to sanction or penalize the lawyers individually, choosing instead to impose the penalties on the firms.
“In their declarations and during our recent hearing, [the lawyers’] admissions of responsibility have been full, fair, and sincere. I also accept their real and profuse apologies. Justice would not be served by piling on them for their mistakes,” Wilner wrote.