ChatGPT Sanctions Matter: Auto-generated Summary of Hearing

SANCTIONS HEARING MEMORANDUM

Case: Roberto Mata v. Avianca, Inc.
Court: United States District Court, Southern District of New York
Date: June 8, 2023
Presiding Judge: Hon. P. Kevin Castel

Parties Present:
Plaintiff: Roberto Mata
Plaintiff's Counsel: Levidow Levidow & Oberman, P.C. - Attorney Thomas R. Corvino
Defendant: Avianca, Inc.
Defendant's Counsel: Condon & Forsyth LLP - Attorneys Bart Banino, Damara L. Carousis, and Marissa N. Lefland
Interested Parties: Levidow Levidow & Oberman, P.C. and Steven Schwartz
Interested Parties' Counsel: Frankfurt Kurnit Klein & Selz P.C. - Attorneys Ronald C. Minkoff, Tyler Maulsby, and Ashley K. Alger
Interested Party: Peter LoDuca
Interested Party's Counsel: Morvillo Abramowitz Grand Iason & Anello P.C. - Attorneys Catherine M. Foti and Penina Moisa

Witnesses:
1. Peter LoDuca
2. Steven Schwartz
3. Thomas R. Corvino
Testimony of Peter LoDuca

Peter LoDuca, an attorney at Levidow Levidow & Oberman, testified that he is admitted to practice in the Second Department and before the First Department. He has been admitted to practice in the Southern District of New York since 1989 and has approximately 37 years of litigation experience. Mr. LoDuca stated that he has handled thousands of cases throughout his career, many of which required legal research. He explained that he conducts legal research by looking for prior examples to establish a template and then finding cases to support his argument. Mr. LoDuca uses Fastcase for legal research, which is similar to Westlaw and Lexis. He was trained in Westlaw but last used it in the 1980s. He also used Lexis around the same time.  He used to do research in libraries but now does most of his research online. Fastcase came into existence before LoDuca started using it 15 years ago. In the interim between ceasing to use Westlaw and starting to use Fastcase, LoDuca used textbooks for research. He would do research in law libraries, such as the Nassau County Bar Association, New York County, and Bronx County. LoDuca is not a member of any bar association.  He has been using Fastcase for approximately 15 years.

Peter LoDuca's Obligations and Actions

LoDuca's obligation when signing the submission of March 1 was to submit an affirmation that was factual and truthful and to represent his client. He is familiar with the Federal Rules of Civil Procedure and Rule 11. His obligation under Rule 11 is to ensure that any affidavit or affirmation he signs is truthful as to its contents. LoDuca relied on a colleague, Mr. Schwartz, for the research reflected in his affirmation. Schwartz is an attorney who had been at Levidow longer than LoDuca and was more familiar with the case in question. LoDuca signed an affirmation under penalties of perjury in the March 1 submission. He read the affirmation, looking for a flow and ensuring there were no large grammatical errors. However, LoDuca did not read any of the cases cited in the affirmation, nor did he ensure that the cited cases existed.

Avianca's Reply Memorandum and LoDuca's Response

Avianca filed a reply memorandum in the action around March. LoDuca did not read the reply memorandum. As the attorney of record, he has responsibility to the Court and the client. LoDuca submitted an affirmation in opposition to the motion and referred the reply to Mr. Schwartz, believing he would handle any necessary response. LoDuca read the reply affirmation after the judge's order to show cause on May 4. The reply affirmation stated that most of the case law cited in plaintiff's affirmation could not be located and the few cases found did not support the cited propositions. Mr. Schwartz did not alert LoDuca to any aspect of the defendant's reply memorandum.

Court Orders and LoDuca's Actions

LoDuca received orders from the judge dated April 11 and April 12. Upon receiving the orders, he turned them over to Mr. Schwartz, indicating the judge wanted to see the cases. LoDuca did not discuss with Mr. Schwartz why the Court asked for an affidavit attaching the cases, nor did he have a discussion with the person in question at that time. In response to the court's orders of April 11 and 12, LoDuca turned the matter over to Mr. Schwartz. LoDuca wrote to the court informing them that he was going on vacation and would be back on April 18. The court had ordered the submission to be filed by April 18. LoDuca asked the court to extend the deadline to April 18, and the court agreed. LoDuca admitted that the delay was because he was going on vacation.

Affidavit of April 25 and LoDuca's Review

LoDuca read the affidavit and saw the cases attached to it, which Mr. Schwartz had assured him were the best he could find. LoDuca looked at the cases submitted to the court. The court had ordered LoDuca to submit copies of the cases. LoDuca understood that the entirety of each of the six fake cases was not submitted. Mr. Schwartz informed LoDuca that the submitted cases were what he was able to download from the search online. LoDuca understood that the submission was not in compliance with the court's order but believed it was the best Mr. Schwartz could find at the time.

Examination of the Varghese Case

The first case in the affidavit was Varghese, brought by Susan Varghese individually and as the personal representative of the Estate of George Scaria Varghese, deceased. The case was an appeal from the dismissal of Susan Varghese's wrongful death claim against China South Airlines. The second paragraph of the case mentioned Anish Varghese, a resident of Florida, who purchased a roundtrip ticket from China South Airlines and was denied boarding due to overbooking. Anish Varghese was rebooked on a later flight, causing him to miss his connecting flight back to New York, and he incurred additional expenses. Anish Varghese sued for breach of contract, breach of the implied duty of fair dealing, and a violation of the Montreal Convention. LoDuca admitted that the case did not make sense but had no reason to doubt its accuracy and did not think it was a bogus case. The court questioned whether the case should have raised red flags, but LoDuca said it never crossed his mind.

Court Order and LoDuca's Actions

The court order was received by LoDuca. He did not review the reply brief filed by Avianca. The affidavit of April 25 appears to be in multiple fonts and typefaces. The cases listed in the affidavit seem to be highlighted and in a larger print. Mr. Schwartz is believed to have put the affidavit together. LoDuca trusted the work done by Mr. Schwartz. LoDuca had a conversation with Mr. Schwartz about locating the cases. The affidavit was signed on April 25, 2023. The notarization date is January 20, 2023. LoDuca received a draft of the affidavit either on the same day or the day before signing it. LoDuca had a conversation with Mr. Schwartz before receiving the draft. Mr. Schwartz was away on vacation during this time. LoDuca also had a vacation during this time. The six cases referenced in the order to show cause are nonexistent. LoDuca apologizes for the falsehoods in the document and any inconvenience caused. LoDuca had worked with Mr. Schwartz for over 27 years without any similar issues. LoDuca accepts responsibility for submitting the affidavit and guarantees that this will not happen again and will thoroughly research and check any future affirmations personally.

Testimony of Steven Schwartz

Steven Schwartz, an attorney at Levidow Levidow & Oberman, testified that he has been admitted to practice in the Second Department since June 1992. His field of practice includes personal injury, workers compensation, and disability law. Mr. Schwartz stated that he has handled approximately 1,000 cases in his career and has submitted legal research in many of them. He conducts legal research by locating and pinpointing the issue, searching for cases that support his proposition, and opposing cases cited by the other side. Mr. Schwartz reads the cases before citing them. He uses Fastcase for research, which was previously called Loislaw. He has been using Fastcase for approximately 15-20 years. Mr. Schwartz acknowledged that he can gain access to Westlaw through a bar association library and that he can plug in a citation to a case on free databases to pull up that case without needing Westlaw, Lexis, Fastcase, or Loislaw.

Mr. Schwartz explained that he used ChatGPT, an artificial intelligence program, for legal research in this case. He used ChatGPT to find cases for his memorandum but did not have access to the federal cases he needed. He tried Google and then used ChatGPT to find cases. ChatGPT provided case law on the Montreal Convention and the issue of statute of limitations. Mr. Schwartz asked ChatGPT for an analysis and then for case law to support the analysis. ChatGPT provided an analysis stating that the Montreal Convention stood for the statute of limitations and that bankruptcy can toll the statute of limitations. ChatGPT cited "In Re Crash Over Southern Indian Ocean" as a case supporting the analysis. Mr. Schwartz asked ChatGPT to provide case law supporting that the statute of limitations is tolled by bankruptcy of the defendant under the Montreal Convention. ChatGPT provided a case, but Mr. Schwartz did not review the entire text of the case. Mr. Schwartz was told that Varghese supported the proposition. He read excerpts of Varghese but did not review the entire text of the case.

Mr. Schwartz admitted that he is not accustomed to citing cases without reviewing the entirety of the text but did so in this instance. He tried to find the full Varghese decision on the internet but could not find it. Despite not finding the full Varghese decision, Mr. Schwartz cited it in the brief, operating under the false assumption that ChatGPT could not produce fabricated cases. 

Avianca's Reply

On March 15, 2023, Mr. Schwartz received a copy of the reply filed by Avianca. The reply stated that they could not locate the cases Mr. Schwartz cited. Mr. Schwartz did not call opposing counsel to offer copies of the cases. Avianca's lawyers put the citations to the cases in quotations and stated they could not locate the cases or any resemblance to them. The witness had never heard of or litigated against the firm of Condon & Forsyth before this case.

The Eleventh Circuit case originated from the Southern District of New York and was appealed to the Second Circuit. The case did not address the limitations period set forth in the Warsaw Convention. Mr. Schwartz's reaction to ChatGPT finding the case was that it might be unpublished, appealed, or difficult to access.  Mr. Schwartz acknowledged that he should have taken further steps to verify the accuracy of the cases provided by ChatGPT. He did not verify the accuracy of the cases he found on a website. Mr. Schwartz had no intent to deceive the court or the defendants. He operated under a misconception that the cases he found were real. He did not follow up or verify the cases. He knew that he could pull up a circuit court case on the internet if he had a citation. Mr. Schwartz looked for the full case on the free internet but couldn't find it. He thought that there might be cases that are in legitimate search tools that are not found on Google. There were six cases that could not be found on Google. Mr. Schwartz concedes that the Varghese case is nonexistent. He had an excerpt from the Varghese case, which contained information about Susan Varghese suing for wrongful death and Anish Varghese suing for breach of contract and breach of implied covenant of good faith and fair dealing.

Testimony of Thomas R. Corvino

Thomas R. Corvino, an attorney at Levidow Levidow & Oberman, testified that the firm primarily practices before the courts of the State of New York and the New York State Workers Compensation Board and does not regularly litigate in federal court. He stated that neither he nor the firm has ever been sanctioned before by any court or tribunal. Mr. Corvino explained that the firm primarily uses Fastcase for research, which has been sufficient for their needs. However, due to a billing error, their access to federal case law through Fastcase was limited. The firm was unaware of this limitation until the Court issued the order to show cause. Mr. Corvino accepted some responsibility for not being more involved in the research process. He expressed remorse for the situation and acknowledged the reputational damage the firm has sustained. The firm has taken appropriate remedial measures, including making all attorneys aware of their access to state and federal resources, retaining ethics counsel, and providing mandatory training on notarization.

Conclusion

Based on the testimony provided by Peter LoDuca, Steven Schwartz, and Thomas R. Corvino, it is evident that there was a lack of due diligence and verification in the research conducted for the case. The use of ChatGPT for legal research without fully reviewing the cases and relying on its accuracy was a significant mistake. The witnesses expressed remorse for their actions and acknowledged the need for remedial measures to prevent similar incidents in the future. The court will need to consider the appropriate sanctions, taking into account the lack of subjective bad faith and the steps taken to rectify the situation.
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Read CereBel's Amicus Curiae Brief.
Hearing Transcript Summary Memorandum Auto-Generated by CereBel Legal Intelligence

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