Another Judicial Order Related to Lawyer Use of Generative AI

An order governing filings before Magistrate Judge Gabriel A. Fuentes (N.D. Ill.), adopted May 31 (paragraph breaks added):

The Court has adopted a new requirement in the fast-growing and fast-changing area of generative artificial intelligence ("AI") and its use in the practice of law. The requirement is as follows:

Any party using any generative AI tool in the preparation or drafting of documents for filing with the Court must disclose in the filing that AI was used and the specific AI tool that was used to conduct legal research and/or to draft the document.

Further, Rule 11 of the Federal Rules of Civil Procedure continues to apply, and the Court will continue to construe all filings as a certification, by the person signing the filed document and after reasonable inquiry, of the matters set forth in the rule, including but not limited to those in Rule 11(b)(2). Parties should not assume that mere reliance on an AI tool will be presumed to constitute reasonable inquiry, because, to quote a phrase, "I'm sorry, Dave, I'm afraid I can't do that …. This mission is too important for me to allow you to jeopardize it." 2001: A SPACE ODYSSEY (MetroGoldwyn-Mayer 1968). One way to jeopardize the mission of federal courts is to use an AI tool to generate legal research that includes "bogus judicial decisions" cited for substantive propositions of law. See Mata v. Avianca, Inc., No. 22-cv-1461 (PKC), 2023 WL 3966209, at *1-2 (S.D.N.Y. May 4, 2023) (issuing show cause order where "[a] submission filed by plaintiff's counsel in opposition to a motion to dismiss is replete with citations to nonexistent cases."); Mata, supra, Attorney Affidavit (S.D.N.Y. May 25, 2023) (D.E. 32-1) (responding to show cause order by stating that the case authorities found by the district court to be nonexistent "were provided by Chat GPT which also provided its legal source and assured the reliability of its content.").

Just as the Court did before the advent of AI as a tool for legal research and drafting, the Court will continue to presume that the Rule 11 certification is a representation by filers, as living, breathing, thinking human beings, that they themselves have read and analyzed all cited authorities to ensure that such authorities actually exist and that the filings comply with Rule 11(b)(2). See Hon. Brantley Starr, "Mandatory Certification Regarding Generative Artificial Intelligence [Standing Order]," (N.D. Tex.) (stating that unlike attorneys, "generative artificial intelligence … hold[s] no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth.")) (www.txnd.uscourts.gov/judge/judge-brantley-starr) (last visited May 31, 2023).