Iovino v. Michael Stapleton Assocs., Ltd. involves allegations that defendant Michael Stapleton Associates, Ltd. d/b/a MSA Security, Inc. (MSA) violated a federal whistleblower law. The parties have engaged in lengthy and contentious discovery and most recently argued before the U.S. District Court for the Western District of Virginia about plaintiff’s objection to the Magistrate Judge granting MSA’s motion for a protective order. The Court found plaintiff’s objections not only incorrect on the merits but also that plaintiff cited fictitious cases and made-up quotations. In addition to affirming entry of the protective order, the Court required plaintiff’s counsel to show cause why they should not be sanctioned under Federal Rule of Civil Procedure 11(c).

RELEVANT BACKGROUND

According to the District Court, “the parties have turned a straightforward case into a protracted discovery battle” with their “dispute du jour” centering on whether the plaintiff must comply with the Department of State (State Department)’s Touhy regulations[1] to depose six current or former MSA employees about information related to MSA’s contract with the agency.[2] The Court ruled in January 2023 that the Touhy regulations apply to plaintiff’s document requests insofar as the requested documents were “generated during the performance of work under” MSA’s contract with the State Department. Following that Order, the parties adhered to the State Department’s Touhy process Rule 34 requests. 

Now, plaintiff seeks to depose six current or former MSA employees, under Rule 30(b)(6), about their work on MSA’s contract with the State Department. MSA agreed to “move forward promptly with the scheduling of [the] depositions” once the State Department approved plaintiff’s Touhy request. Plaintiff, however, disagreed with the suggestion that she would need to comply with the Touhy regulations for these depositions and said that there was “no way [she] w[ould] agree to a Touhy process for non-government employees of a private contractor.” Plaintiff’s counsel “dug in their heels and refused to submit any such requests.” MSA, therefore, moved for a protective order that required plaintiff to comply with the State Department’s Touhy regulations when seeking official agency information through the deposition testimony of current or former MSA or State Department employees.

A Magistrate Judge reviewed the discovery motion and issued a Memorandum Opinion and Order granting MSA’s motion and entering the requested protective order. Plaintiff noted timely objections to the decision, arguing the protective order should be vacated because it was contrary to law. According to the District Court, “[s]hockingly, [Plaintiff’s] objections rely, in part, on citations to sources and quotations that appear not to exist. MSA highlighted those mysterious citations in its brief opposing [Plaintiff’s] objections.” Plaintiff did not file a reply, leaving unrebutted the allegations of fabricated citations, and her objections are ripe for decision.

After discussing the standard of review when a party files objections to a magistrate judge’s order on a non-dispositive motion, the court dug into the merits. 

ANALYSIS

Plaintiff’s primary objection is that the Magistrate Judge “erroneously concluded” the State Department’s Touhy regulations apply to her requests to depose MSA employees about the company’s contract with the agency. Rather than detail the reasons the Court found the Touhy regulations valid and unambiguously applicable, the more interesting issue is plaintiff’s use of phony/non-existent case law. Here, the Court noted Federal Rule of Civil Procedure 11(c), which 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 includes when attorneys act in bad faith and engage in deliberate misconduct to deceive the Court. And, according to the Court, it includes attorneys not taking the “necessary care in their preparation” of court filings because such filings abuse the judicial system, “burdening courts and individuals alike with needless expense and delay.”[3]

Indeed, Rule 11 seeks 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.[4] 

Plaintiff’s brief objecting to the Magistrate Judge’s ruling cites multiple cases and quotations that the Court, and MSA, could not find when independently reviewing plaintiff’s sources.[5] MSA flagged each of these discrepancies in its opposition brief and posited they were the result of generative AI “run amok.” Plaintiff did not explain where her seemingly manufactured citations and quotations came from and who is to blame. According to the Court, “[t]his silence is deafening.” And so, “to uphold the integrity of these proceedings and understand where the purportedly false references originated,” the Court ordered plaintiff’s counsel to show cause why they should not be sanctioned and/or referred to their respective state bars for professional misconduct.

Conclusion

This is not the first time hallucinated citations resulting from counsel using generative AI have led to sanctionable conduct. Recall Mata v. Avianca, Inc.,[6] where counsel submitted nonexistent judicial opinions with fake quotes related by generative AI and then continued to stand by the fake opinions after judicial orders called their existence into question. But the Mata court, like this Court, reminds attorneys the various issues that reliance on generative AI causes:

The opposing party wastes time and money in exposing the deception. The Court’s time is taken from other important endeavors. The client may be deprived of other arguments based on authentic judicial precedents.

There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the American judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity.

Plaintiff has not yet offered any explanation, but the Court gave counsel 21 days to show cause why they should not be sanctioned or referred to their bar associations for misconduct. We should all keep an eye out for that ruling and internalize this case as another example of why AI and generative tools are not a substitute for legal research tools.

[1] Touhy regulations are a set of rules that govern how agencies respond to subpoenas and requests for information from employees that relate to official information.

[2] MSA is a federal contractor that has an agreement with the State Department to train explosive detection canines. The company employed Iovino as a veterinarian for approximately two years before firing her in August 2017. Iovino believes the company fired her for reporting alleged issues about MSA’s contract with the State Department to that agency’s Office of Inspector General. She filed a one-count complaint against MSA in September 2021, claiming that its decision to terminate her constituted unlawful whistleblower retaliation in violation of 41 U.S.C. § 4712.

[3] Cooter & Gell v. Hartmarx Corp.

[4] See, e.g., Mescall v. Renaissance at Antiquity (citing Mata v. Avianca, Inc.)

[5] Specifically, two cases cited appear not 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). Plaintiff also cited a Supreme Court opinion and a Fourth Circuit opinion that exist, but attributed quotations to those decisions that do not appear in them.

[6] There are several other instances of this issue around the country. For example, Michael Cohen, who was Donald Trump’s one-time personal lawyer, admitted he unintentionally submitted AI-generated legal case citations. Elsewhere, attorneys have been suspended for using AI to generate fake case citations in a legal brief and then being dishonest about it.