Counsel blamed the hallucinations on the use of Spellbook AI. On its website, Spellbook describes itself as: “The first AI system that powers contracts end-to-end….”

In summary, respondents notified petitioner that they found hallucinated authorities in connection with the Petition. Petitioner denied the allegation, “doubled down,” and counter-punched with a threatening response.

Petitioner later amended the Petition and admitted to hallucinations that it claimed were due to its use of Spellbook AI.  The court imposed monetary sanctions, awarded attorneys’ fees, and struck the amended Petition, writing that, what the court described as “fraud,” cannot be amended away.  The court appeared to leave open the door for a bona fide amendment.

THE “GLASS HOUSES” PRINCIPLE

Counter-punching may be problematical.  Another court recently advised: “A well-known proverb warns those who live in a glass house not to throw stones. What Plaintiffs did here is worse than that. The proverb assumes a rough parity — two flawed parties, each exposed, the hypocrite merely imprudent for hurling what could be hurled back. That is not what happened here. Plaintiffs did not throw stones from a glass house at another glass house. They stood inside a house made entirely of glass, pointed at the brick house across the street, and declared that structure the fragile one…. Each charge, however, was not merely overstated, but rather exactly backwards.”  Glass Houses Proverb—Don’t Throw Stones and Invective (Jul. 14, 2026)(citation omitted).

FACTS AND THE COUNTER-PUNCH

In this challenge to an administrative decision, the court set the stage as follows:

Unfortunately, shortly after commencement, issues regarding the contents of the petition and accompanying memorandum of law became the subject of litigation rather than the underlying merits. The short yet storied history of the case is as follows. On May 15, 2026, counsels for respondents informed counsel for petitioners, Thomas A. Bizzaro, Esq., that the petition and accompanying memorandum of law contained a myriad of false citations to legal authority using artificial intelligence (”AI”). A more detailed description of the hallucinated citations is contained infra. After discovering the AI errors, respondents requested that Mr. Bizzaro respond with an explanation and/or withdraw the petition; otherwise, they would notify the Court and seek sanctions, including striking the pleadings. Mr. Bizzaro responded to counsels with an eight-page letter, the sum and substance of which was a categorical denial. Mr. Bizzaro stated that his firm undertook a full citation audit in response to respondents’ concerns. His firm identified seven issues which were minor citation and misapplication issues and did not involve fabricated authority. Mr. Bizzaro stressed that the errors were inadvertent and that opposing counsels failed to identify any specific erroneous citation. He rejected respondents’ request that he withdraw the petition as well as any threat of sanctions. In fact, Mr. Bizzaro threatened to seek sanctions and attorney’s fees himself, stating that the unfounded accusations by respondents violated Section 130-1.1 of the NY Compilation of Codes, Rules, and Regulations (”NYCRR”). [emphasis added].

The parties agreed to meet and confer. However:

Prior to that meeting, Mr. Bizzaro filed a letter to the Court, explaining all of the foregoing and annexing the correspondence between the attorneys. In conclusion, Mr. Bizzaro requested a conference with the Court. Thereafter, the Court learned that the May 18, 2026 meeting between the attorneys was unsuccessful. On May 18, 2026 and May 19, 2026 respondents filed additional letters to the docket, which laid out the purported fraud contained in the petition.

THE ADMISSION AND DEFECTIVE AMENDED PETITION

Respondents demanded withdrawal of the petition.  Mr. Bizzaro refused, offered to pay reasonable attorneys fees, and “informed the respondents he would be filing an amended petition and proceeding with the action….”

After a court conference, Mr. Bizzaro filed an amended petition. However, the court wrote: “A review of the 55 page petition reveals that it is essentially the same petition, which was filed upon commencement, less citation to the purported fraudulent legal authority as well as a few additional minor changes.”

Petitioner’s attorney also wrote to the court and the “letter conceded for the first time that the original petition contained ‘AI-citation errors.’ …  Mr. Bizzaro stated that he offered to reimburse respondents for their reasonable attorneys’ fees and costs in connection with the ‘letter exchanges and virtual conference.’”

Next, “Respondents both informed the Court of their intention to file a motion to strike the pleadings and for sanctions. Mr. Bizzaro responded to the foregoing by filing correspondence on June 2, 2026. Petitioner’s letter argues that there was no prejudice suffered as a result of the citation errors, that the amended petition was filed as a matter of right, and that his offer to reimburse respondents for fees and costs incurred in connection with the letter exchanges and the conference remains.”

THE COURT HEARING

The court held a hearing:

At the hearing, Mr. Bizzaro conceded that the underlying commencement documents contained citations to “hallucinated” quotations. He explained that his firm, of which he is the sole principal, uses Lexis and Westlaw. The subscription to Westlaw contains certain AI tools which are linked to Microsoft Word. The program, “Spellbook AI,” is a tool embedded into Microsoft Word. It was represented to Mr. Bizzaro that the AI-tool enhanced writing and detected drafting errors. He was informed that Spellbook AI did not provide legal authorities or citations to work product, but only enhanced drafting. Mr. Bizzaro reviewed the petition prior to commencement but did not “re-run a cite check,” after accepting the changes made by Spellbook AI. Mr. Bizzaro was apologetic and explained the steps he and his office have taken to ensure this does not happen again. Mr. Bizzaro has discontinued his subscription to Spellbook AI and has changed his office policy so that he is the only individual permitted to use AI features. Additionally, Mr. Bizzaro informed the Court that he has registered with the National Academy of Continuing Legal Education for classes dealing with AI issues in the court system. [emphasis added].

The court described the use of AI as “all but unavoidable.”  However, it also wrote, misuse has become a “reoccurring problem….” It found that “petitioners included quotations from at least five otherwise legitimate cases which were either entirely fabricated, or which were altered from their original versions.” It added: “The nationwide imposition of monetary sanctions in similar cases ranges from mere warnings to tens of thousands of dollars….”

APOLOGIZING AFTER “DOUBLING DOWN” & COUNTER-PUNCHING

Instead of counter-punching, the court suggested that Petitioner should have gone “hat in hand” to Respondents.  The court wrote that, while five citations were inaccurate, the remainder were “legitimate,” and Mr. Bizzaro “apologized at length….”  He had explained the error and taken remedial action.

Nevertheless:

Importantly, when Mr. Bizzaro was confronted by counsel for respondents about the fabricated cases, he chose to essentially “double down” rather than to admit to the mistake. Mr. Bizzaro contends that he never denied the use of AI and his response was merely a “preliminary reply under extreme time constraints.” The Court disagrees. The May 16, 2026 response from Mr. Bizzaro was a detailed eight-page letter where counsel argued that there were no fabricated, hallucinated, or erroneous quotations or citations identified by respondents, that he had undertaken a detailed review of all citations, and essentially only identified what he labeled “discrete errors.” Mr. Bizzaro then demanded that respondents identify any inaccuracies and bring them to his attention. Mr. Bizzaro concluded by stating that the accusations levied and the threat of sanctions, absent any proof of wrongdoing, raised an issue of respondents’ good faith and frivolous conduct which may warrant an application by him for sanctions and attorney’s fees. The Court mentions the foregoing only to emphasize that Mr. Bizzaro’s time would have been better spent combing his petition, which very well may have eliminated the need for his letter. [emphasis added].

It added:

In any event, what ensued was months of back and forth between the parties, a “meet and confer” with all counsels, extensive letter practice to the Court, two court appearances, and a substantial amount of work undertaken by all parties. This could have been easily avoided had Mr. Bizzaro acknowledged the fabrications and approached the dispute with hat in hand. Indeed, as discussed supra, Mr. Bizzaro threatened to request sanctions upon the respondents when they broached the issue of these hallucinations. For this reason, the Court finds that Mr. Bizzaro’s conduct was egregious and qualifies as a more significant violation of the Rules of Professional Conduct than it would otherwise. [emphasis added].

MONETARY AWARD

The court awarded a $5,000 sanction plus $10,000 for attorney’s fees, explaining:  “Respondents identified the fabrications, the parties engaged in significant letter practice, which included considerable research, the parties appeared before the Court for a conference on May 19, 2026 and a hearing on July 22, 2026, the respondents filed their respective motions to dismiss the petition and amended petition, and the petitioners filed their opposition papers.”

DENIAL OF THE AMENDMENT: CAN’T “AMEND AWAY” HALLUCINATIONS

It then turned to a novel issue, specifically, respondents’ dismissal argument—that the original petition was defective and the amended petition was essentially a cut and paste, minus the erroneous citations.

Generally, the pleadings rule provides that an amended complaint supersedes the original…. The question is whether this principle should apply where the underlying petition is essentially permeated with fraud and petitioner seeks to amend solely to cure those defects. This Court’s research reveals that this question, under these circumstances, has not been previously addressed. Specifically: can a petitioner amend his or her pleadings as a matter of right to correct defects in the underlying petition where the allegations contained therein were at least partially based upon hallucinated citations to legal authority? This Court concludes that the principle does not apply where the original pleading is permeated with fraud, and the fraud cannot simply be amended away. [emphasis added].

The court found that the first pleading was permeated by fraud. “Petitioners used multiple bogus quotations from the case and submitted a lengthy argument in support based thereon….  Accordingly, after reviewing the cases and the original pleadings, the Court can only conclude that a significant portion of the legal arguments which formed the cornerstone for this specific proceeding were based upon fraudulent legal authority, such that the pleadings were permeated with fraud.”

It then wrote: “The next question the Court must determine is whether petitioners are entitled to amend the petition to remediate the defects. This Court finds that they are not.” [emphasis added].  It cited a prior decision in which the court found sanctionable conduct and rejected a request for a “redo.” It wrote:

Aside from striking the amended petition as a sanction, the Court finds that permitting the petitioners to “amend away” the fraud here would be an improvident exercise of discretion for two reasons. The first reason is that the fraud and the pleadings are inseparable. This is not a matter where a party merely cited to a few fictitious cases. Rather, a significant foundation of this Article 78 proceeding was premised on the reliance of hallucinated quotations and bogus legal authority. Moreover, the amended petition is essentially a replica of the original petition, less the hallucinated quotations. The amended petition includes assertions premised upon the fabricated legal authority. Second, public policy bars the amended petition from standing. Permitting the amendment would effectively reward careless legal drafting, and allow litigants to include false, misleading, and inaccurate allegations in their pleadings with the expectation that they could simply correct the defects through an amendment. As an aside, this Court also gives credence to the respondents’ argument that permitting the amendment would require the respondents and the Court to essentially “Frankenstein” the 55-page petition to determine which allegations are based in legitimate law and which are not. This is an undue burden that the Court refuses to impose. [emphasis added].

The court struck the amended petition, but declined to dismiss with prejudice.  Presumably, this left open the possibility of a new amendment.

ONE LAST ISSUE

The court addressed one last issue: “In light of the foregoing, the Court need not reach the issue of the assertion that the signatures contained in the amended verified petition were falsely notarized. Briefly, the original verified petition includes a signature of petitioner Bobby Zargari, which was notarized by Mr. Bizzaro’s legal assistant on May 8, 2026. The amended verified petition dated May 20, 2026 is also signed by Zargari and notarized by Mr. Bizzaro’s legal assistant. A side-by-side review of the signatures reveals that they appear to be identical, and at the hearing petitioner admitted to reusing the original signature. Under ordinary circumstances, the Court would have set this matter down for a hearing on this specific issue. However, after reviewing the papers and addressing the matter on the record, the Court declines to render a decision on the issue of fraud regarding the notarization in light of its determination to issue sanctions and strike the petition and amended petition.” [emphasis added].

CONCLUSION

The denial of the right to amend in Youssian is not a unicorn.  For another decision denying amendment after disclosure of hallucinations, please see A Request to Refile Brief to Correct Hallucinations Was Denied (Aug. 30, 2026)(“we are denying the motion to withdraw the Opening Brief….”).

Sometimes, there is a duty to “’fess up.”  In a different context, please see Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  Lack of Candor is “Always a bad idea.” (Jul. 13, 2026).

For a discussion of counter-punching in a different context, please see Rule 11 Sanctions for Impugning Character of Opposing Counsel (Apr. 20, 2022); Fraudulent or Unsupported Allegations of Misuse of A.I. Can be Sanctionable (Jun. 25, 2026); Conclusory (False?) Accusations of Using False Case Citations Are Sanctionable (Apr. 12, 2026).

On November 4, 2024, Defendant Jung, an Uber driver, rear-ended Plaintiff Baez’s 1999 Honda Accord, driving it into a guardrail. One factual dispute was whether the Honda was stopped in the left lane.  Jung said it was. Baez “states that he has no recollection of the vehicle being stopped, and that the vehicle was in proper working condition and not disabled at the time of the collision.”  The Honda was not preserved.

The preservation/spoliation facts were straightforward:

Both vehicles were removed from the scene by N & S Towing….  Plaintiff suffered serious bodily injuries and while he was in the hospital, his mother “independently ascertained” the location of his vehicle…. On November 8, 2024, she traveled to the N & S Towing location and took photographs of his vehicle, which were later shared with defense counsel…. By November 12, 2024, Plaintiff had retained counsel…. And on November 20, 2024, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. The request was sent to Plaintiff’s prior counsel, John Lyding of Morgan & Morgan…. Plaintiff is currently represented by Terence Davis of the same firm…. Defendant Jung’s counsel contacted Morgan & Morgan on three occasions about the status of the vehicle….

Suit was filed on August 11, 2025.  The Court wrote: “Finally, on August 15, 2025, Plaintiff’s counsel (through his paralegal) notified Defendant Jung’s counsel that the vehicle was a total loss and had been discarded on an unknown date. [emphasis added].

First, the Court held that the defense motions to dismiss the Complaint were in fact “clearly intended to be motions for sanctions, the sanction requested being dismissal.”  This was significant because, instead of applying the Rule 12(b)(6) standard, it meant that “the Motions will be construed as motions for sanctions based on the destruction of Plaintiff’s vehicle.”

The Fourth Circuit long ago addressed the duty to preserve an automobile.  Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001).  Spoliation includes “the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  Id.  Because an automobile is not ESI, Fed.R.Civ.P. 37(e) is inapposite.  The Baez Court held that its inherent power governed the sanctions requests: “Here, Plaintiff failed to preserve a tangible piece of evidence and the Court’s inherent authority to impose sanctions is implicated.”

The Baez Court explained that a party seeking sanctions “must show that: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.”

TRIGGER AND BREACH OF THE DUTY TO PRESERVE

Trigger of the Preservation Duty

The first step was to determine when the duty to preserve was triggered, i.e., when Baez reasonably anticipated litigation. Id. at *3.  At that time, a party must institute a litigation hold.  “And when a party cannot fulfill this duty to preserve because he does not own or control the evidence, he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence.” Id. (citation and quotations omitted). The Court wrote:

It cannot be disputed that Plaintiff had an obligation to preserve his vehicle. The accident occurred on November 4, 2024, and only four days later Plaintiff’s mother had located the vehicle and visited N & S Towing’s location to take photographs of it….  Less than ten days later, Plaintiff had retained counsel…. And sixteen days later, Defendant Jung’s counsel provided a formal preservation request asking Plaintiff to preserve all relevant evidence, including the 1999 Honda Accord…. Plaintiff’s duty to preserve arose on November 12, 2024, when he obtained counsel. Even had Plaintiff not obtained counsel, his duty to preserve would have been triggered on November 20, 2024, when Defendant Jung’s counsel sent him a preservation letter.… 

Id. at *3.

Breach of the Preservation Duty

The Court then addressed breach of the duty:

Despite having a duty to preserve his vehicle, Plaintiff’s counsel failed to inquire about the vehicle’s status with N & S Towing until almost a year after defense counsel sent the preservation letter…. The first step in the sanctions analysis is satisfied.

Id.  It added: “Plaintiff argues that because the preservation letter was sent to Plaintiff’s prior counsel, his current counsel was not aware of the Defendants’ desire to inspect the vehicle…. This argument borders on ridiculous. Morgan & Morgan has represented Plaintiff since November 12, 2024, and both Plaintiff’s previous and current counsel are Morgan & Morgan attorneys…. Any blame that Plaintiff directs at his former attorney is therefore properly attributed to Plaintiff himself.” Id. at n. 5.

CULPABLE STATE OF MIND

The next step was to evaluate culpability. Id. at *4. Sanctions may be imposed for “any fault—be it bad faith, willfulness, gross negligence, or ordinary negligence….  In the context of spoliation, ordinary negligence is the failure to identify, locate, and preserve evidence, where a reasonably prudent person acting under like circumstances would have done so.”  Id.

However, the degree of culpability affects the severity of the possible sanction. Id.  Case-dispositive sanctions are reserved for the “most extreme circumstances.”  Id.

PREJUDICE AND SECONDARY EVIDENCE

Here, the Defendants asked too much: “The only sanction requested by Defendants is dismissal. But because there is insufficient evidence to warrant such a sanction, the Motions are denied.”  Id. at *4.

The Court looked at what I call secondary evidence in deciding that Defendants could still defend the claims, writing: “Through the police report, vehicle images, the testimony of Plaintiff (who admits his memory of the collision is ‘hazy’ and contradicts the police report), Defendant Jung’s testimony, and any other materials produced throughout discovery, Defendants are able to build their defense without a forensic examination of Plaintiff’s vehicle.”

Moreover, following the collision on November 4, 2024, Plaintiff spent several days in the hospital…. His mother, on her own accord and while he was in the hospital, located and photographed his vehicle on November 8, 2024…. These photos were shared with defense counsel…. [emphasis added].

The Court also found, in my words, a lack of diligence by the defense:

Additionally, the police report states that both vehicles were removed from the accident scene by “NS Towing” and removed to the tow lot…. But despite having the details of what company removed the vehicles and where that company took the vehicles, neither party attempted to inspect or preserve Plaintiff’s vehicle while it sat in the tow lot. Defendant Jung’s counsel failed to follow up with Plaintiff’s counsel about the preservation of the vehicle until July 28, 2025, over eight months after the collision.

Id. at *4 (emphasis added).

DATE OF LOSS?

The first element of spoliation is that “the party having control over the evidence had an obligation to preserve it when it was destroyed or altered….”  Here, a key fact was absent—no one knew when the car went missing.  The Court wrote:

Finally, the parties do not provide any information about when Plaintiff’s vehicle was destroyed. It could be that N & S Towing destroyed the vehicle after Plaintiff’s mother photographed it on November 8, 2024, and before Plaintiff retained counsel on November 12, 2024, or received Defendant Jung’s preservation request on November 20, 2024….

Id. (emphasis added).  Further, this appeared to be relevant to culpability:

There is no evidence that Plaintiff or his counsel purposefully deprived Defendants of the opportunity to examine the vehicle or facilitated its destruction. To the contrary, the record reflects a police report providing where the vehicle was towed and the Plaintiff’s mother locating and photographing Defendant’s vehicle in a tow lot, where both parties knew it to be located, and where it was eventually disposed of on an unknown date and time. These facts do not support dismissal.

Id.

CONDUCT OF PLAINTIFF’S COUNSEL WAS CONCERNING, BUT IRRELEVANT

The Court wrote:  “To be clear, Plaintiff’s counsel’s conduct is concerning. Only sixteen days after the collision, Defendant Jung sent a preservation letter to Mr. Lyding requesting that Plaintiff preserve his 1999 Honda Accord that was involved in the accident…. It is entirely unclear what Mr. Lyding did, if anything, to preserve this evidence. At some point, another Morgan & Morgan attorney, Mr. Davis, took over Plaintiff’s case and replaced Mr. Lyding. But despite both attorneys being from the same law firm and there being only one client, Mr. Davis now claims that he had no knowledge of the preservation letter sent to Mr. Lyding on November 20, 2024.” Id. at *5 (emphasis added).

However, that was irrelevant because Defendants asked only for dismissal, writing: “Any other remedy would be an unacceptable outcome and surely undermine the integrity of the judicial process.” Id. at *5.  Based on Defendants’ request, the Court wrote:  “While Plaintiff’s counsel’s failure to comply with the fundamental obligation to preserve material evidence may indeed be considered negligence or with a culpable state of mind, the Court does not need to reach this question. Defendants have not asked the Court to impose any lesser sanction than dismissal.”

CONCLUSION: THE DOOR WAS LEFT OPEN

The Court held that:  “Because Defendants have not established that Plaintiff’s conduct was so egregious as to warrant dismissal, the vehicle’s relevance, as it relates to the sanctions analysis, is immaterial.” Id. at *5.

However, it left the door open to a lesser sanction, stating that “the Court need not reach the question of whether Plaintiff’s conduct warrants a lesser sanction. Instead, the Court retains the ability to consider this issue at trial, at which time the Court may order appropriate sanctions, including an adverse inference jury instruction.”

In prior decisional authority in this District, the Court has pointed out that a party asking only for game-ending sanctions may effectively waive lesser sanctions. Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025)(Defendants moved for “game ending” sanctions under Fed.R.Civ.P. 37(e)(2); however, the United States Magistrate Judge recommended that the motion be denied.  The Court provided a Rule 37(e)(1) suggestion.); Rule 37(e)(1) Sanctions for Breach of Duty to Preserve Communications (Oct.11, 2025).

The Court’s rejection of that motion was unequivocal: “Plaintiff cannot unilaterally set deadlines for Defendant and then seek to sanction Defendant for failing to comply with them.”  Dortie v. Marriott International, Inc., 2026 WL 2647599 (D. Md. Sep. 9, 2026)(Chasanow, J.).

The Court had squarely warned plaintiff that Fed.R.Civ.P. 11 applied to unrepresented parties and attorneys in the context of “hallucinated” citations.  Plaintiff apparently did not heed the warning.  However, plaintiff escaped sanctions because his case was dismissed on other grounds.

The Court wrote:

Notwithstanding the foregoing admonition, it appears Plaintiff has once again cited a “hallucinated” case derived perhaps from use of a generative artificial intelligence (“AI”) tool (e.g., ChatGPT, Gemini, etc.). Specifically, Plaintiff cites to “Cooke v. Carrington Mortg. Servs., No. 22-1425 (4th Cir. 2023),”…. Plaintiff contends this case stands for the proposition that “servicer-imposed charges tied to improper insurance placement constitute a concrete injury.” … Upon challenge by Nationstar, Plaintiff later represented once again that “Cooke v. Carrington Mortg. Servs., No. 22-1425 (4th Cir. 2023)” is an “unpublished case” available at “2023 WL 3010355.” … Based on the court’s review, this case does not exist. The court has checked the Fourth Circuit case number—22-1425, and Westlaw citation—2023 WL 3010355—offered by Plaintiff to identify this case; neither directs the court to the referenced opinion. Indeed, the court further observes two decisions of this court bearing this caption: Cooke v. Carrington Mortg. Servs., No. CV TDC-18-0205, 2019 WL 3241128, at *1 (D. Md. July 18, 2019), and Cooke v. Carrington Mortg. Servs., No. CV TDC-18-0205, 2018 WL 6323116, at *7 (D. Md. Dec. 3, 2018)—neither of which pertains to “improper insurance placement.”

While this court has already cautioned Plaintiff that continued citation to hallucinated authorities or the like risks issuance of an order to show cause why he should not face sanctions under Rule 11, the court declines to take further action in the instant matter where Plaintiff’s case will be dismissed in full. [emphasis added].

For more District of Maryland AI decisions, please use the “category” District of Maryland, above.  For example, please see A.I. Protective Orders Are Becoming Routine (Aug. 27, 2026), District of Maryland “Hallucination” Decision (May 5, 2026), and District of MD Standing Order re GenAI in Court Filings (Aug. 10, 2026).

For Maryland State court decisions, please see Maryland Copy and Paste “Hallucinations” Case – (Jun. 17, 2026), Hallucinations Are “Old News,” But a Recent Maryland Decision Addresses Ethical Contours (Jan. 17, 2025), Maryland Fake Citation Case – Court Issues a Warning – Referral to Atty. Grievance Comm’n. (Nov. 2, 2025), and Maryland’s Proposed Anti-Hallucination Rule (Mar. 16, 2026).

UPDATE: Aziz v. USA, 2026 WL 2633445 (D. Md. Sep. 4, 2026)(Abelson, J.)(“The Court warned Plaintiffs about their high-volume approach in its previous opinion: ‘If Plaintiffs continue to file frivolous motions or include fabricated citations, and/or violate the [four-]page limitation set forth in the accompanying order, the Court may enjoin them from submitting further filings or consider imposing other sanctions.’ Aziz, 2026 WL 1132884 at *3. As a review of the docket will indicate, Plaintiffs did not heed this warning, and have continued filing numerous motions. Many of these filings were over four pages, included hallucinated or fabricated citations, and contained frivolous arguments that misstated the law and/or facts. See, e.g., ECF No. 114 (‘Plaintiff’s Emergency Motion to Compel Ruling on Pending § 1292(b) Motion; For Stay; And For Reconsideration of Orders Entered Without Jurisdiction’). The Court has nonetheless reviewed these motions and will deny all of them as either moot in light of the instant dismissal or denied for the reasons provided in the previous memorandum opinions. The Court will not issue an order to show cause regarding sanctions because it is dismissing this case. However, Plaintiffs are forewarned that similar conduct in this case or others may result in sanctions.”).

The State opposed the motion, arguing that it had “spent considerable time” in “detailing” the inaccuracies. It argued that “Appellant should not now be permitted to refile the Opening Brief to address the shortcomings the State identified in its Answer Brief.”

A different ADD attorney entered an appearance and reported that the prior attorney “informed ADD that he used an artificial intelligence (‘AI’) tool in preparing the brief and [the prior attorney]  failed to sufficiently review the brief for accuracy prior to filing it.”  Later, ADD reported that prior counsel had said that he used AI to “revise” the brief. New counsel stated that the prior attorney had been removed from the case.

The new attorney “renewed the request to allow the Opening Brief to be withdrawn and requested leave for new counsel to be permitted to file a new Opening Brief.”

The Supreme Court of Montana agreed with the State:

After due consideration, we are denying the motion to withdraw the Opening Brief in this appeal. We agree with the State that Feme’s appellate counsel may address the issues in the Reply Brief. M. R. App. P. 12(3) provides, in relevant part, that reply briefs must be confined to new matter raised in the Appellee’s answer brief. In this instance, we will allow new appellate counsel greater latitude in addressing the State’s arguments, including correcting factual errors and offering more precise legal authority in support of Appellant’s arguments and we further extend the deadline for filing the brief.

The court ordered that “Appellant shall prepare, file, and serve the Reply Brief within 30 days of the date of this Order.”

Before addressing the merits of the issue raised on appeal, we discuss one issue of concern. Appellant’s brief, which was filed on July 15, 2025, contained multiple inaccurate case citations. On September 3, 2025, appellant filed a notice of errata, attempting to correct the citation irregularities. On September 9, 2025, this Court treated the notice as a motion to correct the brief and denied the motion. On September 10, 2025, appellant filed a motion to strike his brief and file a corrected brief. On September 17, 2025, this Court denied appellant’s request, noting that it was filed three days before the State’s deadline to file its brief.

On October 29, 2025, this Court issued its opinion in Mezu v. Mezu, 267 Md. App. 354, 367 (2025), noting “the problems that occur when lawyers use AI [artificial intelligence], without the diligence required, in drafting briefs.” In that case, where the brief cited multiple cases that did not exist, as well as others that did not support the proposition for which they were cited, and counsel stated at argument that he did not typically read the cases he cited to the Court, we referred the attorney to the Attorney Grievance Commission….

Here, counsel for appellant has not admitted that the mistakes in the brief were due to the use of AI, but that seems likely. In assessing our response to the errors here, we reiterate that “[t]he failure to use AI responsibly in legal research raises ethical issues and can result in sanctions when used improperly. It is unquestionably improper for an attorney to submit a brief with fake cases generated by AI.” ….

In this case, however, the brief was filed before the decision in Mezu, the inaccuracies were not excessive and did not include totally made up cases, counsel tried to correct the errors before the State filed its brief, and the State does not contend that it was harmed. Given these circumstances, we shall not, as we did in Mezu, refer counsel to the Attorney Grievance Commission. We again urge counsel, however, to use AI responsibly and check the accuracy of all citations before submitting a brief to this Court, or any other court. [emphasis added].

In assessing sanctions, some courts have looked at two factors—verification and candor.  Cite Checking to Find Hallucinated Cases Deemed Insufficient – Part II – Verification and Candor Are Expected (Aug. 17, 2026).

“This is an unreported opinion. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Md. Rule 1-104(a)(2)(B).”

Defendants’ sanctions motion was unsuccessful because Defendants failed to provide clear and convincing evidence that the paper documents went missing after this Plaintiff’s duty to preserve was triggered.  The case demonstrates that the trigger and loss dates for each litigant is fundamental to spoliation analysis. Terran Biosciences, Inc. v. Compass Pathfinder Limited, 2026 WL 2349408 (D. Md. Aug. 13, 2026)(Crawford, J.).

THE FACTS,COMPLAINTS, and DISCOVERY REQUEST

While one plaintiff, Dr. Thompson, was working at the University of Maryland-Baltimore (“UMB”) lab, he developed a breakthrough medical treatment. The research details were recorded in physical lab notebooks and stored in the lab.

In March 2020, a major renovation began.  The materials were supposed to be moved to the floor below.  Post-renovation cleanup was completed in late 2022, however, Dr. Thompson had resigned on June 30, 2022.

The Court wrote: “When Dr. Thompson resigned, his lab ceased to exist, and there is no evidence that the removed lab materials, including the lab notebooks, ever returned to the fifth floor…. UMB has no knowledge of what happened to the lab notebooks after Dr. Thompson’s departure in June 2022.”

Plaintiffs sued, alleging improper disclosure and use of their trade secrets by Defendants.  Terran filed suit on August 5, 2022. Dr. Thompson joined as a plaintiff on June 5, 2023. UMB joined as a plaintiff on February 6, 2024.

Compass and two individuals were named defendants.

On July 10, 2025, [defendant] Compass served on Plaintiffs a request for production of documents that sought, among other things, documents relating to Dr. Thompson’s research, specifically identifying “lab notebooks” as encompassed by the request…. Defendants deposed [plaintiff] Dr. Thompson on September 16, 2025…. At this deposition, Dr. Thompson testified that when he left UMB, he knew where he left the lab notebooks but that “nobody seems able to find them.”

EFFORTS TO FIND THE NOTEBOOKS – DISCOVERY ON DISCOVERY

A discovery dispute was deferred while UMB continued to look for the notebooks. The parties then filed a status report and reported that they had agreed, in my words, to “discovery on discovery.”[1]

Specifically, the parties represented to the Court that UMB had “agreed to produce its internal litigation hold correspondence and the positions of individuals who received the litigation hold.”[2] …

UMB had also agreed to produce a witness to testify on five topics:

(1) When UMB first became aware that Terran intended to file this lawsuit, UMB’s involvement in that effort, and UMB’s knowledge of the fact that the suit involved alleged trade secrets detailed in Professor Thompson’s lab notebooks; (2) The details of UMB’s litigation hold; (3) What steps UMB took to identify relevant physical evidence, including the lab notebooks and when it implemented its litigation hold; (4) The timing and circumstances of the loss of the lab notebooks; and (5) When UMB first learned that the lab notebooks were missing, when it told Terran, and what steps it took next.

… The letter advised that after Defendants received this discovery, they would “confer with UMB on the scope of sanctions Defendants will seek based on the loss of the lab notebooks.” …

All of those steps were accomplished and the parties proposed a formal briefing schedule, which the Court granted.

COURT PROCEEDINGS

Initially, the Magistrate Judge rejected two preliminary challenges mounted by Plaintiffs.  Those were a challenge alleging untimeliness under Judge Grimm’s decision in Goodman v. Praxair, 632 F. Supp. 2d 494 (D. Md. 2009), and failure to follow the Judge’s protocol for resolving disputes.  The Court’s exhaustive analysis of timeliness is worth reading, id. at *3, but not the focus of this post.[3]

THE SPOLIATION STANDARD

Turning to the merits, the Court found sanctions were “unwarranted.”  Because the notebooks were not ESI, Fed.R.Civ.P. 37(e) did not apply and the Court held that the party moving for sanctions must show:

(1) [T]he party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

The Court relied on its “inherent power” to control the judicial process, noting that inherent power is limited to curative sanctions and the movant bears the burden of providing “clear and convincing” evidence.

TRIGGER DATE

The first element involves deciding when the duty to preserve was triggered and when the loss or destruction occurred. Defendants contended that Plaintiffs’ duty arose in April 2022, months before litigation began, and long before there was any contention of loss. Plaintiffs replied that there was no duty in April 2022 and the lab notebooks most likely were lost in July 2022, before the duty was triggered.

The Facts Relating to the Trigger Date

The Court set the scene:  “There is no dispute that Terran filed this lawsuit on August 5, 2022, notified UMB of the filing on August 8, and that approximately one week later, on August 16, UMB issued its litigation hold.”  While UMB did not enter the case until February 6, 2024, it is a plaintiff and a plaintiff’s duty is triggered when it decides to pursue a claim.

In support of their asserted April 2022 trigger date, Defendants marshalled several facts.  The Complaints alleged: “Plaintiffs first suspected Defendants’ disclosure of, and misuse of, the Psilocybin Trade Secrets in approximately April 2022, in the course of reviewing Compass’s published patent application filings.”  Further, the Defendants relied on Plaintiffs’ privilege log which showed communications with outside counsel regarding “litigation, IP advice, and licensing advice.”[4]

Plaintiffs responded that UMB did not anticipate that it would later join the case.  They asserted that while Terran may have anticipated litigation in April 2022, that knowledge could not be imputed to UMB.  And, they asserted that the logged communications with counsel were on a licensing agreement with Terran, not on litigation against the Defendants.

The Court’s Holding Re: Trigger Date

The Court held that Defendants had failed to establish by clear and convincing evidence that Plaintiffs reasonably anticipated litigation as early as April 2022. It added:

Even assuming that Plaintiffs first suspected misuse of the trade secrets in April 2022, the mere suspicion of certain facts giving rise to a dispute demonstrates only that there was the “possibility of litigation,” not that Plaintiffs should have reasonably anticipated litigation at that time…. The Complaint does not allege that Plaintiffs understood in April that Compass had misappropriated their trade secrets, nor does it allege that Plaintiffs made known their suspicions of misappropriation to Compass. On the contrary, the allegation that Plaintiffs “first suspected misuse” in April suggests that this was their initial reaction to information contained in Compass’s patent filings—a far cry from an affirmative decision to sue, or even a direct threat of litigation from Terran to Compass that would have triggered a duty to preserve.  [emphasis in original].

The Court found the privilege log entries to be ambiguous. “At most, they establish that Plaintiffs communicated with private, outside attorneys regarding licensing and intellectual property issues and ‘litigation’ of an unspecified nature. That the subject emails covered multiple topics other than litigation tends to support the conclusion that litigation (of whatever nature) was not the parties’ sole, or even primary, concern at that time.”

The Court identified another gap in proof: “Nor have Defendants set forth any clear and convincing evidence establishing at what time after April 2022 but before August 5, 2022 [the date suit was filed], Plaintiffs, including then non-party UMB, may have reasonably anticipated litigation sufficient to trigger a duty to preserve.”

The Court concluded:

Accordingly, Defendants have failed to establish by clear and convincing evidence that Plaintiffs should have reasonably anticipated litigation in April 2022, thus triggering their duty to preserve evidence at that time. Rather, the evidence submitted supports the Court’s findings that Terran commenced litigation on August 5, 2022, triggering its own duty to preserve relevant evidence, and UMB’s duty to preserve arose at the latest on August 8, 2022, with UMB’s receipt of correspondence from Terran advising UMB of the lawsuit and seeking preservation of relevant evidence.[5]

The Court added: “Having determined when the duty to preserve arose, the Court now considers when UMB lost the notebooks, as the timing of when the evidence was lost in relation to when the duty to preserve arose, is essential to the spoliation analysis.”

DATE OF LOSS OF THE NOTEBOOKS

The Court wrote: “After engaging in discovery to determine the lab notebooks’ whereabouts, neither Plaintiffs nor Defendants can state with any precision when the lab notebooks were lost or destroyed. The evidence shows that the last time the lab notebooks were observed was in June 2022…. There is no concrete evidence regarding what happened to the notebooks after that time.”

Plaintiffs asserted that the “most likely” time of loss was July 2022. They relied on an October 1, 2025, UMB email stating that the lab notebooks were inadvertently lost during the renovations and cleanup.  Renovations began in early 2021 and continued into 2022, well after Dr. Thompson resigned.

The Court disagreed with Plaintiffs:

This evidence does not support the firm conclusion that the date of loss or destruction of the lab notebooks was in July 2022, versus a later point, like August or thereafter. Plaintiffs’ chosen timing is convenient because it would mean that the lab notebooks were lost before the Plaintiffs’ duty to preserve arose. But another plausible and equally speculative interpretation of the same October 1 email is that the lab notebooks may have been lost sometime after August 5, 2022, when this lawsuit commenced. The record is unclear. At bottom, the only conclusions that the Court can draw from the evidence presented are: (1) the lab notebooks went missing sometime after June 2022, when Dr. Thompson last saw them; (2) the lab notebooks were declared lost on October 1, 2025, when UMB advised Defendants of the results of their investigation into the whereabouts of the lab notebooks; and (3) the lab notebooks were in UMB’s possession when they were lost or destroyed. [emphasis in original].

However, the Court saw no need to decide when the notebooks went missing:

As noted above, I cannot conclude that Plaintiffs’ duty to preserve the lab notebooks arose in April 2022. The evidence only establishes that the duty arose on August 5, 2022, at the earliest. Because the lab notebooks were lost at some point after June 2022, it is entirely possible that the lab notebooks were destroyed in the intervening month before there was a duty to preserve. Given that Defendants have not carried their evidentiary burden at the first step in the analysis, the Court need not proceed to step two to determine whether UMB had a culpable state of mind. Doing so would require the Court to stack all its findings upon a hypothetical—a “what if” scenario that presumes Plaintiffs lost or destroyed the lab notebooks after August 5, 2022. Such a conditional analysis could not serve as the basis for the award of any sanctions.

In short, the movant failed to demonstrate that the lab notebooks went missing after the duty to preserve was triggered. The Court added: “Defendants’ evidence would also fail to meet the less stringent preponderance of the evidence standard, if such standard applied here.” Here, the trigger date was dispositive.

This blog was initially posted on  Electronic Discovery Reference Model.

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[1] For more on “satellite” or “culpability” discovery, see generally Guidelines for “Discovery on Discovery” (Aug. 5, 2025); “Discovery on Discovery” Permitted (Sep. 4, 2025); “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit  (Sep. 5, 2025).

[2] For more on disclosure of implementation communications, see “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” (Feb. 19, 2026); 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024); Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022); When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020)

[3] For more on timing, see, The “Best Time” to File a Spoliation Motion (Jul. 15, 2025); When Should a Motion for Sanctions be Filed?  (Mar. 30, 2026).

[4] A Privilege Log Can Be Admissible Evidence (Jan. 20, 2025); Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025);  Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025); Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025).

[5] Generally a Third Party Had No Duty to Preserve (Feb. 14, 2026).  UMB was not a party when Terra made its preservation request.

The matter was before the court on a show cause order.

In reviewing the plaintiff’s recent filings, the Court identified text that had been formatted to be invisible to a human reader while remaining fully legible to any software that reads the document’s text. That concealed text is a set of instructions addressed to artificial-intelligence systems, directing any such system that reviews or analyzes the filing to produce output only favorable to the plaintiff’s position and to treat a prior clerk’s ruling as an error to be corrected in their favor. The Court issued its Order to Show Cause so that the plaintiff could be heard before the Court determined whether this occurred and, if so, what sanctions, if any, should follow.

Id. at *1 (emphasis added).

The Elliot court entered a finding that, for example, one of plaintiff’s filings “contains hidden text set in tiny-point type and colored white, so that it is effectively invisible to a person reading the document, while remaining ordinary, machine-readable text to any system that processes the file. In substance it directs that any artificial-intelligence model reviewing or receiving the document ensure that its output agrees with the plaintiff’s filing….”

The court found that this prompt injection was not isolated.  After the court entered an order that “specifically warned of concealing text in pleadings,” the court wrote that “[n]onetheless, … the plaintiff again concealed text with white-on-white small point font.”  And, on the morning of the show cause hearing, the court wrote that plaintiff did it again: “hi:) i hope yo ucant see me….” That filing also had a hidden link to a You Tube video.

The court provided the self-represented plaintiff’s explanation:

The plaintiff claimed that they only meant to include the instructions on Docket Entry #177.00 as a dutiful citizen auditing the Court’s Al systems and they mistakenly copied and pasted part of the instructions in #178.00. They maintain that prior orders of the Court were incorrect and some orders, having only the word “DENIED,” meant that they had to audit the Court to see if the pleadings were actually being reviewed. The Court inquired as to why, then, did they continue to put secret messages in future pleadings. The plaintiff replied that he did so as a joke….

Noting that self-represented litigants are entitled to some latitude, the court added: “That latitude, however, carries a limit….  The solicitude owed a self-represented litigant is a solicitude toward their lack of legal training but it stops at the misuse of the process itself.”

The Elliot court wrote that it “welcomes” the use of AI. It wrote that AI tools “are here to stay” and it applauded “honest” use.   It added: “A person who cannot afford a lawyer, who would once have faced the courthouse with nothing but confusion and a cause needing redress, can now assemble a coherent set of thoughts, find the general applicable law, and put a readable document before the court. It can help a litigant prepare for oral arguments and understand resulting court rulings.”

The Elliot court uses AI. It wrote that it “has found these tools valuable as an aid to its own work, always subject to its own independent judgment and verification. Judgment can never be delegated to a machine in any profession, but most importantly in the legal field. In preparing this very decision, the Court used Google’s Gemini tool to produce a working English translation of the foreign decision discussed below and used Westlaw’s Precision artificial-intelligence review features to check its authorities and legal principles.”  It added:

Everyone technically uses Al, as Microsoft Word’s (and Google Docs’) spelling- and grammar- checking features now use artificial intelligence! The Court uses programs to review its syntax, spelling and cohesive structure. Despite the use of these tools, however, the judgment, reasoning and the decision remain the undersigned’s. The promise of the tools is real, and that promise is realized when a human being remains responsible for the result. [emphasis added].

The court then turned to careless and dishonest use:

Each generation of the legal profession has had to master the tools of its day and to guard against their misuse. Dictation machines, the photocopier, the FAX machine, e-mail, electronic research, electronic filing, and, most recently, the remote proceeding. Each started as a novelty that competent practice required one to understand and to use for the client’s benefit while guarding against harm. Competence and caution have always been intertwined. Artificial intelligence is the newest of these tools and among the most powerful, and it asks the same of us, that we marry the enthusiasm to use it with the discipline to watch it closely. [emphasis added].

After discussing a recent court AI rule, the Elliot court turned to the facts of the case.  It wrote: “The conduct at issue here, a litigant hiding instructions in their own filing to manipulate the tools that others might use to read it, was not among the dangers we contemplated [in that court rule]. It was hardly imagined at the time. That the Rules do not address this conduct reflects only how quickly the technology and its misuses are moving. That the conduct was not named in the new Rule takes nothing away from the duties of good faith and candor that have always governed those who appear before this Court since long before any of these tools existed.”

While most of the attention regarding misuse of AI has been focused on hallucinated cases, this is different. The court wrote: “That danger looks at what comes out of the machine. The conduct here is deliberate and dangerous input, a litigant seeding their own filing so that the output of whatever tool later ingested it would be corrupted in favor of the litigant.” [emphasis in original]. It added:

A framework built to catch unreliable output does not, by its nature, reach a filer who manipulates the input, and the verification duty the Connecticut Judicial Branch imposed above, however sound for the danger it was written to address, leaves this one untouched. But it remains a serious litigation abuse. The duty of candor to the court and the court’s inherent authority over the integrity of its own proceedings reach it, and requires the court to sanction it. [emphasis in original].

The court explained:

CONCEALED INSTRUCTIONS (“PROMPT INJECTIONS”) TO AUTOMATED SYSTEMS ARE NOT PERMITTED IN COURT PLEADINGS

What the plaintiff did here was to use that new tool in a dishonest way. A filing is a communication to both the court and the opposing party. Its integrity rests on the simple premise that what the reader sees is what the filer wrote, and that the filer refrains from transmitting, at the same time, a second and hidden message engineered to change how the filing is reviewed or potentially judged.

Text that is invisible to the human eye but planted for a machine to read and obey betrays that premise.

Had the plaintiff wished to address the court’s or an opponent’s potential use of artificial intelligence, they were free to write so in plain, visible words that everyone could see and answer. That they hid the instruction instead is, itself, evidence of its malicious purpose.

The technique has a name, “prompt injection.” [emphasis in original].

The opinion described “prompt injection”: “By hiding a command inside a document that the system later ingests, the filer attempts to smuggle their own instruction into that stream so that the system treats it as though it had come from the system’s operator. In this case that operator is presumed to be the court, its staff, or opposing counsel. The object is to capture a tool that a judge, a clerk, or a party might rely upon and to turn it, silently, to the filer’s advantage.”

The Elliot court  viewed prompt injection as a secret communication that opposing counsel could not see.  It analogized it to an ex parte communication.  That is improper because our judicial system rests on the premise of open communication on-the-record.  “It is a concealed communication to those who decide, or to the tools on which they rely, clandestinely pleaded outside the knowledge of the other side and, indeed, the Court, itself.”

In a fascinating passage, the court explained the method and scope of prompt injection in other aspects of society. Id. at *5. It wrote that “the tactic is now everywhere….”  It wrote: “An opponent’s production, a witness statement, an expert report, any incoming document becomes a potential vector to corrupt output.”

The Judge wrote that the court does not use AI to review filings, “so the hidden instruction had no impact on a ruling. The wrong lies in the attempt, the deliberate planting of a concealed directive intended to mislead whatever artificial-intelligence tool ANY reader of the filing might use.”

The Elliot court did not find plaintiff’s explanation credible.  Because the issue was novel, the court relied on its inherent authority. However, it cited a prompt injection decision from Brazil as supportive. As noted above, it translated that decision by using AI.

In conclusion, the court evaluated the factual predicate: “Turning specifically to whether the actions of the plaintiff are sanctionable in this case, the fact that the plaintiff continued to hide messages in new pleadings after receiving notice of this hearing is stunning.”

However, the court Elliot expressly relied on principles of proportionality in imposing a sanction.  It rescinded permission to electronically file and mandated paper filing by the plaintiff. That “is a proportionate response to a demonstrated and repeated misuse of e-filing, and it is the narrowest measure that reliably addresses the conduct. It is further not a barrier to the plaintiff’s continued pursuit of this case.”

The court closed by stating: “Nothing in this order prohibits the plaintiff, or any party, from using generative artificial intelligence as an aid in preparing filings, provided the user independently verifies what the tool produces, as Connecticut Practice Book § 4-9(b) requires.”

This blog was initially posted on  Electronic Discovery Reference Model.

Because defense counsel improperly instructed a defense deponent not to answer questions, the Court ordered the deposition to be re-opened and cautioned counsel.  Because the requestor failed to establish a foundation, the request for a forensic examination of the opponent’s cell phone was denied.  Because one party impeded discovery, the opponent was awarded additional deposition hours.  Because one party produced 1,600 pages of text messages after deposition, the deposition was re-opened.

INSTRUCTIONS NOT TO ANSWER DEPOSITION QUESTIONS

Plaintiff deposed school board employees. The Court wrote:  “Survivor A contends that counsel for the School Board improperly instructed a witness ‘not to answer a basic question’ and tendered an excerpt of the deposition transcript in support of his claim…. The transcript excerpt reveals an unnecessarily contentious exchange between counsel, both in and outside the presence of the witness.”

The Court noted that, under Fed.R.Civ.P. 30(c)(2), deposition testimony is generally taken subject to objection.  Instructions not to answer are limited to privilege, enforcement of a court order, and to present a Rule 30(d)(3) motion based on bad faith or an effort to harass.  The Court also noted its Discovery Guideline which made it presumptively improper to instruct a witness not to answer, except under Rule 30(d)(3).

So, here is what the Court said happened:

Here, the deposition transcript reflects that the School Board’s counsel objected to Plaintiff’s counsel’s proposed line of questioning regarding text messages between Survivor A and Ms. Arnold [who was the “then-wife” of Survivor A’s “then-teacher”]  and repeatedly instructed the witness not to respond….

The Court added:

When there is an objection to a deposition question, counsel are expected to rise above their roles as advocates for a particular party, and, acting as officers of the court, resolve their differences on the spot without outside intervention.… The transcript reflects that rather than “rise above,” counsel argued back-and-forth in front of the witness regarding the propriety of the questioning and the basis for instructing the witness not to respond and, ultimately, the School Board’s counsel contacted the undersigned’s Chambers. [cleaned up].

The ruling was unsurprising:

Nearly two decades ago this Court noted that “[i]t has been the law in this circuit for 20 years that lawyers may not instruct witnesses not to answer questions during a deposition unless to assert a privilege.” Boyd, 173 F.R.D. at 144 (citing Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977)). The School Board’s counsel did not assert privilege as the basis for his objection. Rather, he contended that Plaintiff’s counsel was asking about documents the witness had not seen previously … and was attempting to elicit an improper opinion…. The School Board’s counsel also argued that the question had no foundation … and asserted without particularity that Plaintiff’s counsel had been “badgering” the witness “all day with questions” …. None of these objections support an instruction that the witness should not respond to the questions posed. Counsel for the School Board’s instructions in that regard were therefore improper. Moreover, his behavior and language were unacceptable and inconsistent with this Court’s Discovery Guidelines, which require attorneys “to behave professionally and with courtesy towards all involved in the discovery process.” Local Rules, Appx. A, Guideline 1 ¶ d. Counsel for the School Board is cautioned that he must advocate within the bounds of this governing framework. The witness’s deposition will be reopened so that Survivor A may complete his questioning. [emphasis added].

FORENSIC EXAMINTION OF SURVIVOR A’S CELL PHONE

The school board sought a forensic examination of Survivor A’s cell phone.  Survivor A’s counsel replied that the existence of that phone was known to defense counsel before Survivor A was deposed. Additionally: “Survivor A’s cellular telephone contains 1,428 text chains and approximately 7,000 photographs and 3,000 videos that span approximately eight years, and that some of the material is protected by privilege.”

Further, Survivor A reported that “Survivor A has worked with Defendants to find and produce voluminous discovery from the cellular telephone, including using 34 search terms, ‘most of which came directly from Defendants’ counsel.’”

The school board asserted that a forensic examination was needed for a complete record.  But the Court wrote: “The School Board does not, however, identify any gap in Survivor A’s production….  Instead, the School Board posits that some material on the cellular telephone was deleted.”

The defense argument fell flat: “This argument carries little weight because it lacks an articulated foundation or timeline.”

In an argument that in my opinion borders on frivolous: “The School Board further contends that ‘Plaintiff’s counsel should not be the determinator [of] what information…should be disclosed to the defendants.’”

The Court wrote: “Yet, that is precisely how discovery operates. The discovery process is designed to be extrajudicial, and it relies on responding parties to search their own records and produce documents or other data.” [cleaned up].[1]

It also provided a detailed analysis of the predicate for requesting a forensic examination:

Federal Rule of Civil Procedure 34 governs, among other things, a request to “inspect, copy, test, or sample” electronically stored information, which includes forensic examination of electronic devices. Fed. R. Civ. P. 34(a)(1)(A)…. Making forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence…. What is more, the Advisory Committee on Civil Rules has cautioned that “[c]ourts should guard against undue intrusiveness resulting from inspecting or testing [electronic information] systems.”…. A forensic examination of electronically stored information—something sister courts in this Circuit have described as “a drastic discovery measure,” … must therefore be proportional to the needs of the case. …  A request for forensic examination is, among other things, “subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative, duplicative or seeks discovery that could be obtained from some more convenient, less burdensome[,] or less expensive source”. [cleaned up]

Applying those principles, the Court rejected the school board’s request:

Here, the School Board has not explained how Survivor A’s discovery responses are insufficient or why forensic imaging is warranted and proportionate to the needs of this case, particularly in light of the intrusive nature of a forensic examination of a personal cellular telephone.

The Court resolved other disputes, including one over additional deposition hours based on a post-deposition disclosure by Survivor A of 1,600 pages of text messages, resulting in an additional 3.5 hours of deposition.

Because of the school board’s “animosity” and because it had “foreclosed questioning altogether in at least one deposition,” Survivor A was granted 35 additional deposition hours.

For related information, see also:

• Request to Appoint Neutral Forensic Expert Denied as Speculative and Unsupported
• Standard for Court-Ordered Forensic Examinations – When Does Misconduct “Cross the Rubicon”?
• Motion to Compel Forensic Image of Cell Phone: Granted in Part; Denied in Part
• Another Decision on Forensic Imaging of an Opponent’s Cell Phone
• Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland
• District of Maryland Sets Guidelines for Cell Phone Preservation in Place

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[1] See generally Unsupervised Self-Collection Predictably Led to Problems and “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System.

In May, I published a blog about  Williams v. Honl, 348 Or. App. 505 (Apr. 22, 2026), titled Cite Checking to Find Hallucinated Cases Deemed Insufficient.  The Oregon court wrote: “[S]o that the clear does not become cloudy, we state the obvious: Using generative artificial intelligence to generate legal briefs and then simply cite-checking them bears no resemblance to the competent practice of law….When lawyers trade reflection for automation, they surrender the very quality that makes their words worthy of belief. Although cite checking is, of course, an important part of producing reliable, competent briefs, it is not the type of work that requires a law degree. Law is a profession….” (cleaned up; citation and quotations omitted; emphasis added).

A similar result was reached in Smith v. Polk Co., 2026 WL 2280990 (W.D. N. Car. Aug. 7, 2026). After the court issued an order directing Plaintiff to show cause why she should not be sanctioned for use of artificial intelligence, counsel for Plaintiff responded by letter. Plaintiff apologized for inadvertently failing to file an A.I. certification required by the court. Additionally:

Counsel represented that she “does not use AI to conduct legal research,” and that “[t]o ensure the accuracy of citations … [she] runs briefs through LexisNexis brief analysis” and fixes any error that appears “alarming.” … Counsel further represented that she “has AI embedded in her practice” but that her “AI program cannot conduct research and cannot hallucinate.” … Regarding the fabricated quotations, counsel for the Plaintiff says that she “must be the origin,” that “she made the errors, accepts full responsibility, attempted to properly verify her work and fell short,” and that “AI cannot be blamed.” … Counsel also represents that she has now “made changes to her practice” and “has added additional time to more thoroughly vet her work.”

Id. at *10 (emphasis added). The court was not satisfied:

The Court is deeply troubled by the errors previously identified in the Plaintiff’s filings, and counsel’s letter does little to allay the Court’s concerns. Counsel indicates that she relies on a LexisNexis program for citation verification rather than having an attorney, or a paralegal working at an attorney’s direction, verify citations as required by the Court’s Standing Order. Moreover, counsel has not explained the origin of the fabricated quotations other than to accept responsibility for them and assert that they were not produced by an artificial intelligence program. How such fabricated quotations could have appeared in the Plaintiff’s filings at all therefore remains a mystery. Finally, while counsel asserts that the artificial intelligence program embedded in her practice cannot hallucinate, she has provided no corroboration for that assertion, nor has she even provided the name of the artificial intelligence program that she uses. As a result, the Court finds that counsel’s response has fallen well short of the Court’s expectations. Nevertheless, because counsel has accepted responsibility for the errors in the Plaintiff’s filings, the Court will discharge the Show Cause Order. Counsel for the Plaintiff is cautioned, however, that any similar shortcomings in future filings will result in sanctions.

Id. (emphasis added).

The court in Barteca Holdings LLC v. Tacobarn Newtown LLC, __ F. Supp. 3d __, 2026 WL 2253785 (D. Conn. Aug. 4, 2026), issued a show cause order concerning use of GenAI.  It cataloged erroneous citations, quotes that did not exist, and mischaracterizations of law. After hearing the attorney’s explanation, it wrote:

On June 25, 2026, the Court held a show-cause hearing, at which Attorney Miller reiterated those representations and further explained the circumstances under which the AI-generated material was incorporated into his briefing. Attorney Miller clarified that this matter is the first and only matter in which he utilized artificial intelligence. As for his writing process, Attorney Miller explained that he first wrote the brief himself conventionally. Then, in an attempt to improve it, he used a tool called Open Law, which he paid for, for suggestions on arguments and additional cases. He also used Claude and Chat GPT for additional suggestions. Concerned about the risk of AI hallucinations, Attorney Miller then cross-checked the citations in the brief to determine whether they existed and were cited correctly, including by Shepardizing every case in the brief through Lexis. However, he did not adequately verify that each “pin cite” referred to the correct page or that the quotations included in his brief were accurate. [emphasis added].

The court wrote that “merely incorrect legal statements” do not violate Fed.R.Civ.P. 11. However, once a fabricated citation is identified, the court considers two factors:

1) verification and inquiry (“Whether counsel [or the unrepresented party] conducted a reasonable, human-based verification of every cited authority before filing. A reasonable inquiry requires more than reliance on an automated tool; it demands independent confirmation through recognized primary legal sources. The signature of an attorney [or the unrepresented party] certifies human diligence, not mechanical output.”)(emphasis added; citation omitted); and,

2) candor and correction (“Whether counsel [or the unrepresented party] promptly disclosed the use of AI and corrected the record once inaccuracies were discovered. Candor after filing weighs heavily in mitigation; concealment or minimization aggravates the violation. The duty of candor extends beyond the moment of signature, it continues for as long as the filing remains before the Court.”)(citation omitted).

The Barteca court wrote: “Applying the framework discussed above, the Court finds that the first factor—verification and inquiry—weighs in favor of sanctions because Attorney Miller failed to conduct a reasonable human verification of the authorities cited in the challenged filings before submitting them.”  It stated that “Rule 11 imposes an obligation on attorneys to, at a minimum, read the cases they cite to the Court.” [citation omitted].

While the second factor—candor to the court—weighed in the attorney’s favor, “regret and apologies are not necessarily enough to avoid the imposition of sanctions for the submission of non-existent legal authority.” [citation omitted].

After consideration of all factors, the court imposed a sanction of $3,500 “together with a referral of this matter to the Grievance Committee….”

For general guidance, see Annot., 110 A.L.R.7th Art. 3 (Originally published in 2026), titled “Sanctions and Remedies Where Parties Submit Citations Hallucinated by Artificial Intelligence Programs—State Cases.”

This blog was initially posted on  Electronic Discovery Reference Model.