In response to the misuse of generative artificial intelligence (“GAI”) in court filings, courts nationwide have promulgated standing orders and local rules on how parties should use GAI in the courtroom. This article will summarize those local rules and standing orders and identify common issues in cases where attorneys’ misuse of GAI resulted in potential sanctions. Of the approaches courts have taken thus far, the local rule set forth by the United States District Court for the Eastern District of Texas presents one notable model for courts considering promulgating a rule on the use of GAI, because it provides guidance on the use of GAI in court filings while remaining able to adapt to GAI’s rapid advancements.
An Overview of GAI
In a nutshell, GAI refers to machine learning algorithms that are “trained on data to recognize patterns and generate new content based on the ‘rules and patterns’ they have learned.”[1] There are many different GAI programs that serve many different purposes. For example, ChatGPT is a GAI that can generate pages of material and has infamously been responsible for generating court filings that included fake cases. However, Grammarly and Microsoft Copilot are GAI that serve to help with clarity of writing. Moreover, Westlaw and LexisNexis have developed GAI to help with case research, which could streamline attorney work products and save money for law firms and clients.
Legal Standard
Current case law surrounding GAI has invoked Rule 11 and Rule 8 of the Federal Rules of Civil Procedure. Rule 11 provides that any document filed with the court must be signed by at least one attorney of record who certifies that “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.”[2] Rule 11 also requires certification that any document filed with the court does not “needlessly increase the cost of litigation . . . [and] the factual contentions have evidentiary support or . . . will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”[3] Rule 8 provides that “a pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”[4] Although Rule 26 has not been implicated yet, discovery requests, responses, and objections could be drafted using GAI. Similar to Rule 11, Rule 26(g) requires that at least one attorney of record sign discovery requests and responses and certify that after a reasonable inquiry all filings are warranted by existing law, are nonfrivolous, and do not needlessly increase the cost of litigation.
A violation of Rule 8 can lead to a dismissal of the complaint, while violations of Rule 11 and Rule 26 can result in a range of sanctions. If a court decides to issue sanctions sua sponte, it should only do so “upon a finding of subjective bad faith.”[5] When parties sign and file their affirmations and make no inquiries as to the accuracy of their assertions, it supports a finding of subjective bad faith.[6] When parties use GAI to file documents that include fake cases, it inherently supports a finding of subjective bad faith because it demonstrates a lack of inquiry sufficient to impose sanctions sua sponte. Therefore, courts possess the power to sanction parties that misuse GAI and do not need to promulgate additional filing requirements.
Local Rules and Standing Orders Relating to the Use of GAI
Courts across the country have varied on how to address the use of GAI in court filings. Court rules on the topic have ranged from guidance implementing no additional requirements to a complete prohibition on GAI. However, most courts have promulgated a rule on GAI that requires some form of disclosure and certification when a party uses GAI.
A. Disclosure and Certification When GAI Is Used to Draft Filings
Courts that require disclosure when GAI is used to draft portions of a filing have variations on their requirements. Some courts only require a verification that the contents of the filing are accurate, while others require a separate certification in addition to the filing. For example, in 2023 the United States Bankruptcy Court for the Western District of Oklahoma promulgated a general order that requires that any document drafted by GAI be accompanied by a certification that
(1) identif[ies] the program used and the specific portions of text for which [GAI] was utilized; (2) certif[ies] the document was checked for accuracy using print reporters, traditional legal databases, or other reliable means; and (3) certif[ies] the use of such program has not resulted in the disclosure of any confidential information to any unauthorized party.[7]
B. Disclosure and Certification When GAI Is Used to Prepare a Filing
Some courts require disclosure and certification when parties use GAI in any capacity to prepare filings with the court. However, these courts do not distinguish between GAI that can generate work products and other forms of GAI that can help clarify writing or facilitate legal research. For example, Judge Palk of the United States District Court for the Western District of Oklahoma created a standing order that is representative of this issue and requires parties that used GAI to draft or prepare a court filing to disclose “that [G]AI was used and the specific [G]AI tool that was used. The unrepresented party or attorney must further certify in the document that the person has checked the accuracy of any portion of the document drafted by [G]AI, including all citations and legal authority.”[8] This suggests that to comply with the standing order, parties must disclose and certify every filing where they used legal search engines that incorporate GAI to help streamline search results or proofreading software such as Grammarly or Microsoft Word.
Some courts, mainly in Texas, take this a step further to require a certification regarding GAI regardless of whether it was used; they require that parties certify either that they did not use GAI to draft or prepare a filing or, if they did, that the parties will check “any language drafted by [GAI] . . . for accuracy, using print reporters or traditional legal databases, by a human being.”[9] Overly broad disclosure and certification requirements can be cumbersome and difficult to enforce, and they may create confusion among individuals trying to file.
C. Prohibitions on the Use of GAI
A minority of courts prohibit parties from using GAI to draft documents that are filed with the court.[10] Some judges prohibit the use of GAI in any capacity. Although these rules typically create a carve out to allow parties to use search engines that incorporate GAI, these orders do not create the same carve out for proofreading software that utilizes GAI for clarity of writing.[11] For example, Judge Newman of the United States District Court of the Southern District of Ohio stipulates that “[n]o attorney for a party, or a pro se party, may use Artificial Intelligence (‘AI’) in the preparation of any filing submitted to the Court.” This magnifies the problem with not distinguishing between different forms of GAI discussed above because as more proofreading software incorporate GAI to assist with clarity of writing, this standing order will become increasingly arduous to comply with. Further, it would be impossible to consistently determine whether a party has used GAI to assist with clarity of writing or not, which would make such a standing order too far-reaching to the point that it is moot. As a result, these courts will likely have to change their local rules and standing orders in the near future.
D. Rules That Provide Guidance and Do Not Impose Additional Requirements
A handful of courts have addressed the use of GAI as guidance rather than imposing an additional filing requirement. For example, the United States District Court for the Eastern District of Texas promulgated a local rule that stated if a party used GAI to prepare or draft a court filing, Federal Rule of Civil Procedure 11 still applies. The local rule also reminds parties to review the generated content for accuracy if they use GAI, in order to avoid sanctions.[12] This approach can achieve a court’s goal of addressing the use of GAI while also being able to adapt to the inevitable widespread adoption of GAI.
Common Issues That Arise in GAI Sanctions Jurisprudence
The main issue that the courts that have sanctioned litigants for misuse of GAI have encountered is the “hallucination” of cases when parties use GAI to generate work products. The United States District Court for the Southern District of New York addressed this issue in the infamous case Mata v. Avianca, where an attorney used ChatGPT to draft an Affirmation in Opposition that cited mostly fake cases.[13] Since then, citing fake cases has been the main reason parties have been sanctioned for using GAI.[14] In Kruse v. Karlen, in addition to hallucinating cases, the GAI also provided erroneous information about state statutes.[15]
Courts have also dismissed pleadings generated with GAI because they violated Federal Rule of Civil Procedure 8(a). In Whaley v. Experian Information Solutions, Inc., a pro se litigant filed a 144-page complaint alleging a violation of the Fair Credit Reporting Act and used GAI to generate a portion of it.[16] The complaint was verbose and confusing, and it lacked accurate citations. Therefore, the court dismissed the complaint without prejudice because it violated Rule 8(a).[17]
The United States Bankruptcy Court for the Southern District of New York has also addressed the use of GAI in an expert witness report. In In re Celsius Network LLC, an expert witness generated a 172-page report using GAI in seventy-two hours. He admitted that a “comprehensive human-authored report would have taken over 1,000 hours to complete.”[18] The report “contained numerous errors, ranging from duplicated paragraphs to mistakes in its description of the trading window selected for evaluation . . . [and] contain[ed] almost no citations to facts or data underlying the majority of the methods, facts, and opinions set forth therein.”[19] As a result, Judge Glenn excluded the report from the record.[20]
Although Rule 26 has not been at issue in cases noted thus far, GAI could easily be used in discovery requests, responses, and objections. Some courts have anticipated this possibility in their standing orders and stated that Rule 26 sanctions apply in addition to Rule 11 sanctions.
Conclusion
Although courts should rightfully be concerned about the widespread use of GAI, they already have the tools to address any issue that may arise without promulgating an additional rule. If parties use fictitious sources, they inherently violate the certification requirement under Rule 11 and Rule 26. The Fifth Circuit acknowledged this on June 11, 2024, and decided not to promulgate a rule on GAI because, as Law360 summarized it, “court rules already require attorneys to check filings for accuracy, and using AI doesn’t excuse lawyers from ‘sanctionable offenses.’”[21] Imposing additional certification requirements or prohibitions is likely unnecessary and could burden parties and courts. Nevertheless, considering the changing landscape of GAI, a local rule similar to the one promulgated by the United States District Court for the Eastern District of Texas may be useful to inform litigants that the use of GAI is permitted and to serve as a reminder to check all sources for accuracy or else be subject to Rule 11 and Rule 26 sanctions.
Bernard Mar, What Is Generative AI: A Super-Simple Explanation Anyone Can Understand, Forbes (Sept. 26, 2023, 6:01 p.m.). ↑
Fed. R. Civ. P. 11(a), (b). ↑
Fed. R. Civ. P. 11(b)(1), (3). ↑
Fed. R. Civ. P. 8(b). ↑
Mata v. Avianca, 678 F. Supp.3d 443, 462 (S.D.N.Y. 2023) (quoting Muhammad v. Walmart Stores E., L.P., 732 F.3d 104, 108 (2d Cir. 2013)). ↑
Avianca, 678 F. Supp.3d at 464. ↑
Order re: Pleadings Using Generative A.I., General Order 23-01, Bankr. W.D. Okla. (2023). See also General Order on the Use of Unverified Sources, General Order 23-1, D. Haw. (2023) (requiring parties that used GAI to generate any filing with the court to disclose that they relied on an unverified source and confirm the language generated was not fictitious); Pleadings Using Generative Artificial Intelligence, General Order 2023-03, Bankr. N.D. Tex. (2023) (requiring parties to check for accuracy any portion of a document drafted by GAI through “print reporters, traditional legal databases, or other reliable means”); Blumenfeld Jr., J., Standing Order for Civil Cases, C.D. Cal. (last updated Mar. 1, 2024) (requiring a party that uses GAI to generate a portion of a filing to attach a separate document disclosing the use and certifying the accuracy of its content; Magistrate Judge Oliver of the same district also adopted this standing order); Vaden, J., [Standing] Order on Artificial Intelligence, Ct. Int’l Trade (2023) (requires that any submission that contains text drafted with GAI assistance be accompanied by (1) disclosure of what program was used and portions of the text that were so drafted and (2) a certification that the use of the program did not result in a breach of confidentiality to a third party). ↑
Palk, J., Disclosure and Certification Requirements – Generative Artificial Intelligence [Standing Order], D. Okla. (last visited Aug. 8, 2024). Judge Robertson of the United States District Court for the Eastern District of Oklahoma has also adopted this standing order. See also Cole, Mag. J., The Use of “Artificial Intelligence” in the Preparation of Documents Filed before This Court [Standing Order], N.D. Ill. (last visited Aug. 8, 2024) (requiring parties to disclose if GAI was used in any way, including legal research, during the preparation of the filing); Baylson, J., Standing Order re: Artificial Intelligence (“AI”) in Cases Assigned to Judge Baylson, E.D. Pa. (2023) (requiring parties to disclose if GAI was used in the preparation of the filing as well as a certification that each citation is accurate; Judge Pratter of the same district also adopted this standing order). ↑
Starr, J., Mandatory Certification Regarding Generative Artificial Intelligence [Standing Order], N.D. Tex. (last visited Aug. 8, 2024). Judge Kacsmaryk of the same district, Judge Olvera of the United States District Court for the Southern District of Texas, and Judge Crews of the United States District Court for the District of Colorado have also adopted versions of this standing order. ↑
Coleman, J., Memorandum of Law Requirements [Standing Order], N.D. Ill. (last visited Aug. 8, 2024). ↑
See Boyko, J., Court’s Standing Order on the Use of Generative AI, N.D. Ohio (last visited Aug. 8, 2024). See also Newman, J., Artificial Intelligence (“AI”) Provision, Standing Order Governing Civil Cases and Standing Order Governing Criminal Cases, S.D. Ohio (2023). ↑
E.D. Tex. Local Rules CV-11(g), AT-3(m) (2023). See also Subramanian, J., Individual Practices in Civil Cases [Standing Order], S.D.N.Y. (2023); Johnston, J., Artificial Intelligence (AI) [Standing Order], N.D. Ill. (last visited Aug. 8, 2024). ↑
Avianca, 678 F.Supp.3d at 450. ↑
See Park v. Kim, 91 F.4th 610, 612 (2d Cir. 2024) (an attorney cited nonexistent cases, and the judge referred her to the court’s Grievance Panel). See also United States v. Cohen, No. 18-CR-602 (JMF), 2024 WL 1193604, at *2 (S.D.N.Y. Mar. 20, 2024) (Michael Cohen’s lawyer cited three nonexistent cases generated by Google Bard); Ex parte Lee, 673 S.W.3d 755, 756 (Tex. App. 2023) (an attorney cited five sources in an appeal from an order of judgment; three were nonexistent, and the two published cases did not correspond to the reporter the cases were cited with); Will of Samuel, 206 N.Y.S.3d 888, 891, 896 (N.Y. Sur. 2024) (although counsel did not admit to using GAI, the court suspected use of GAI because five out of the six cases he cited were fake and ordered a hearing to determine the issue). ↑
Kruse v. Karlen, ED 111172, 2024 WL 559497, at *3 (Mo. Ct. App. Feb. 13, 2024). ↑
Whaley v. Experian Info. Sols., Inc., No. 3:22-cv-356, 2023 WL 7926455, at *2 (S.D. Ohio Nov. 16, 2023). ↑
Id. ↑
In re Celsius Network LLC, 655 B.R. 301, 308 (Bankr. S.D.N.Y. 2023). ↑
Id. at 308. ↑
Id. at 309. ↑
Sarah Martinson, 5th Circ. Won’t Adopt Rule on AI-Drafted Docs, Law360 (Jun. 11, 2024). ↑
