I blogged last year about the $6K sanctions imposed earlier in this case for AI hallucinations, as well as about the earlier order identifying the hallucinations and the lawyer's response; here's a follow-up, from today's Order on Post-Trial Motions by Judge Nina Wang (D. Colo.):
Before concluding, the Court must address Frankspeech's brief in response to Plaintiff's Motion to Amend Final Judgment. Troublingly, given the background of this case, Frankspeech's response brief misattributes a district court case to the Tenth Circuit. On the first page of its brief, Frankspeech states that "[t]he 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue is entitled to finality." As the Federal Supplement reporter citation indicates, however, Capital Solutions is not a Tenth Circuit decision. See Cap. Sols., LLC v. Konica Minolta Bus. Sols. U.S.A., Inc., 695 F. Supp. 2d 1149 (D. Kan. 2010). Nor was that decision appealed to the Tenth Circuit. A reasonable review by counsel should have alerted them of the error; it is well-understood to any lawyer that the Federal Supplement is the reporter for district, not circuit, court decisions.
{Although the Court is primarily concerned with counsel's erroneous citation, this description of Capital Solutions's holding is also misleading. Capital Solutions dealt with a Kansas statute that "prescribes a procedure by which the jury first determines whether punitive damages should be allowed, and then the court determines the amount of such damages in a separate proceeding." Before trial, the court held that the Seventh Amendment's "trial by jury" clause—not the Reexamination Clause—entitled a plaintiff "to have the entirety of its claim for punitive damages, including the determination of the amount, decided by the jury." In other words, Capital Solutions dealt with whether a jury should decide the amount of punitive damages in the first instance, as opposed to ruling that an award of punitive damages is "entitled to finality" in the post-trial context.}
The Court has previously sanctioned defense counsel under Rule 11 for, among other things, this exact type of error. At that time, defense counsel both admitted that their previous citation errors were produced by artificial intelligence but then claimed that the errors resulted from a one-off mistaken filing of the wrong draft, not a failure to properly review their citations for accuracy..
