U.S. District Judge Katherine P. Failla of the Southern District of New York ordered Steven A. Feldman to appear at a conference in her courtroom, along with other parties, after looking "askance" at the response he submitted to her order to show cause.
Among other issues, that response contained a quote from a case in which that quote didn't appear. A Google search revealed the quote was instead from an article about that case, Judge Failla explained in her Friday order.
"Mr. Feldman did not attribute the quote to this article. That is especially concerning considering that he was responding to an order to show cause why he should not be sanctioned for his erroneous citations," Judge Failla said.
Judge Failla initially ordered Feldman to show cause why she shouldn't strike a brief he filed in a trademark infringement suit and impose sanctions against him when it appeared that he used AI to generate the brief, which contained citations to cases that don't exist.
Feldman's July 11 response to that order acknowledged that the brief's errors "resulted from sophisticated AI hallucination mechanisms rather than intentional misconduct."
His response also included an extensive quote from Ray Bradbury's "Fahrenheit 451" and a rumination on ancient scribes' carrying of the stylus "as both tool and sacred trust" in the libraries of Ashurbanipal.
"Like the scribes of antiquity who bore their stylus as both privilege and burden, I understand that legal authorship demands more than mere competence — it requires absolute fidelity to truth and precision in every mark upon the page," Feldman expounded in that response.
Judge Failla seemed unamused with Feldman's response in her order Friday.
"To take a page out of Mr. Feldman's book, this is so much 'sound and fury, [s]ignifying nothing,'" Judge Failla said, quoting Shakespeare's "Macbeth."
In addition to Feldman mistakenly attributing a quote from an article to a case in which the quote didn't appear, the judge also said she was concerned by the fact that the writing style in Feldman's response "differed markedly from the writing style in the letter he submitted to the court three days later," which contained numerous typos, according to the judge.
The judge seemed to be implying that Feldman may have used AI to draft his response to her order to show cause as to why he shouldn't be sanctioned for using AI to draft his previous brief.
"And it would be especially concerning, and indeed unacceptable, if Mr. Feldman used a large language model to draft his response without verifying whether the quotations in it were accurately attributed," the judge said.
Judge Failla also rebuked Feldman for the substance of the arguments in his response, which she said "cannot be squared with reality."
For starters, Feldman insisted that his errors were inadvertent and resulted from AI hallucinations. But if his errors were the result of AI hallucinations, they could not have been "inadvertent" since he chose not to verify that the cases he cited are real cases, according to the judge.
"Mr. Feldman must know how to verify that a case exists on Westlaw without the added benefit of AI tools," Judge Failla said.
In an interview with Law360 Pulse on Monday, Feldman attributed some of the issue to the fact that Westlaw isn't publicly available and requires a subscription.
"The only way you can actually verify Westlaw citations is if you have access to Westlaw or Lexis," which he doesn't have, Feldman said, though he added that he asked his co-counsel to check the cases. "General AI only is limited to the database that it has available," he said.
AI tools that are intended for legal research should be able to access the necessary databases to check that research, and it's "fundamentally unfair" if they can't, Feldman said.
Attorneys for the plaintiffs in the case did not respond to requests for comment Monday.
Judge Failla said she would reserve judgment about whether to impose sanctions on Feldman or strike his brief. Instead, she ordered him and the other parties in the case to appear at a conference concerning the matter on Aug. 14.
"The court wants to hear directly from Mr. Feldman, so that it can give him the opportunity to — as he puts it — 'prove [himself] worthy to carry the stylus once more in service of justice and truth,'" Judge Failla said.
Plaintiff Flycatcher Toys Inc. is represented by Tal S. Benschar and Efrem T. Schwalb of Koffsky Schwalb LLC.
Defendant Affable Avenue LLC is represented by Steven A. Feldman of Law Office of Steven A. Feldman & Associates PLLC.
The case is Flycatcher Corp. Ltd. et al. v. Affable Avenue LLC et al., case number 1:24-cv-09429, in the U.S. District Court for the Southern District of New York.
--Editing by Marygrace Anderson.
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