Hello and welcome on the Terry Sanford Federal Building in beautiful downtown Raleigh, NC where I will be live-posting a show cause hearing starting at 4:00 ET
Background information here:
Today at 4:00 I will go over to Raleigh and sit in on a show-cause hearing. This will be my first time attempting to live-post a hearing in person. The case is Fivehouse v. DOD and the question is whether the DOJ attorney fabricated quotes in a brief.
news.bloomberglaw.com
This is my first time doing this in-person so it's a bit of an experiment As attorney I was able to bring my cell phone into the courtroom with me but all photography appears to be strictly forbidden in the building lol the clerk just said "the hearing starts when the judge comes in, the clock does not matter" I am obviously not a real reporter, but from looking around I think I may be the only person here who isn't actually involved in the case All rise Plaintiff is not here Neil Fowler and Ellis Boyle here for Mr. Renfer Judge now reciting the background. Renfer claimed the fabricated citations in this case were inadvertent and the result of accidentally filing an early draft. Upon review of Mr. Renfer's other filings, the court independently discovered other fabrications. Fowler: we believe this was a solid brief with solid arguments made Judge: solid except for the fabricated quotations? Boyle: we want to apologize on behalf of the US Attorney's office, this is clearly not acceptable Boyle: when Plaintiff's surreply was filed it did not appear to be on point and also we have staffing issues Boyle: DOJ was already investigating this issue before the show-cause order was issued Boyle handed up what he referred to as a memorandum apparently related to this matter Judge: this isn't a memorandum Boyle: sorry I gave you the wrong document DOJ not exactly covering itself in glory Renfer called as witness Judge: I want to give you an opportunity to explain to the court Renfer (reading a statement): it was my responsibility to review these citations, I take full responsibility. I failed to complete a full verification. I have practiced law for 30 years. I will never do this again. Renfer: I did not knowingly make a false representation to the court. As a consequence of this matter I have made the decision to separate from the DOJ. Judge: thank you for that statement. I still want to give you the opportunity to fully and candidly explain how this happened. Render: sorry, what document are we talking about? Judge now putting the list of errors in front of Renfer Judge: there are errors in multiple documents. I think the evidence contradicts your statement that this was not done intentionally. Candidly, I need you to give me a full explanation. Judge reading out the real case quotes and comparing them to the quotes in the filed briefs Renfer: I accidentally deleted my original brief because I was overwhelmed so I used AI to try and replicate my prior work I 100% knew that AI would be the culprit here Renfer: I could swear that I had reviewed the document before filing it DOJ attorneys having a little conference about this at their table Basically Renfer says he was overwhelmed with documents, he accidentally overwrote his document, he tried to use AI to fix it and AI messed it up Judge continues to go through each citation pointing out the errors. Renfer claims the same explanation for every error. Judge now moving on to other filings with other errors, which are obviously not affected by the same "I accidentally overwrote my file" explanation Judge pointing out that all of the fabricated quotes lean in the same direction (restricting the court's review) which tends to indicate that this was done to deceive the court Renfer claiming an error on a different document was the result of a cut-paste error (he cut and pasted language from one case but forget to correct the citation which he had previously written for a different case) Judge does not like this explanation On another document: Renfer claims that language he placed in quotation marks was intended as a general statement of the case and not an actual quotation. "This was a writing technique to liven up the prose." Renfer: the language in quotes was for emphasis, obviously I did not do it correctly Judge is not impressed Judge: the challenge is, when you file something with the court that is not forthright, it makes me question everything else you say Renfer seems pretty unclear about the actual sequence of events he is claiming Judge: your surreply claims these quotations were "inadvertently included". What do you mean by that? Renfer: I mean that I thought I had reviewed the document and checked the citations but I guess I didn't Judge: you intentionally drafted this with AI and you intentionally filed it with the court without checking it. How is this accidental? Why weren't you candid with the court? Judge: attorneys, and particularly those with the awesome power of the US Attorney's office, have a responsibility to be candid Renfer: the issue is whether I tried to deceive the court. I didn't intentionally deceive the court. I just made a mistake. Renfer: the document I filed was intended to be a draft. Once I came back from my vacation I did the final document. Judge: you're going to have to walk me through that. I understand the meaning of the words you are saying but it doesn't make any sense. Judge gets Renfer to admit he is aware of the many AI hallucination cases Judge: have you used Gen AI to draft other documents that you have filed in this court? Renfer: I use AI to create outlines, not to create drafts (other than this specific document) Judge: why are you using AI to do run of the mill issue spotting which is a basic part of your job? (I am also interested in this question) Renfer says he is aware of the problems with AI, he can give no explanation, he keeps going back to "I thought I had checked these citations but I just forgot" Renfer: I have nothing to gain from lying to the court about this Renfer: this was not a major motion such as summary judgment, it was a routine filing Judge: that makes it all the more outrageous that you resorted to an AI tool and didn't check after it Judge: we reviewed lots of your filings in this court and we found lots of small errors, misstatements, etc that were not included in the show cause order. At best this is chronic sloppiness. Judge: I believe this issue probably affects lots of other cases in which you have been involved Judge: I want you to explain why your actions don't violate the NC Rules of Professional Conduct Renfer: this was not intentional. I did not intend to file a draft. I did not intend to mislead or defraud the court. Renfer also claims that his filings were approved by his bosses and that should insulate him Renfer: my behavior may arguably be prejudicial but it was not intentional. I had a duty and I failed in my duty. Judge: you ever been sanctioned before Renfer: no your honor Renfer now stepping down from witness stand Boyle: we share the court's concerns, when I received a copy of the surreply I did not make sense to me, this is the first time I have heard about the AI part of this Boyle apologizes on behalf of the US Attorney's Office Boyle: we do not use AI, that is our policy, we are all going to take training on this Judge: has OPR made any findings that you can reveal to the court? Boyle: no, it takes a long time, I can't give you an estimate Judge: does the OPR investigation prevent you from taking disciplinary action as the US Attorney Boyle: uh, I don't know Judge: Renfer claims that the Civil Chief approved his filings, do you know anything about that? Boyle: I don't think that actually happened Judge: so are you saying that the Civil Chief did or did not approve of this filing? Boyle: I am unaware of the sequence of events that Mr. Renfer recited for the court Judge now considering whether he needs to continue the hearing to get testimony from the Civil Chief Didn't catch his name, but someone from the US Attorney's office is now presenting the forensic history of the documents that were filed. The document was only opened for 25 minutes, probably indicating copy and paste from AI. The document was then opened and edited for about an hour and a half. Minor stylistic changes were made, but no edits to the citations at issue. Some of the specific citations, when searched in legal search software, revealed no hits whatsoever, indicating that the exact quote was not found in any case Judge: I don't think Mr. Renfer is fabricating quotes from whole cloth. I think he is drafting with AI and then not checking them. Boyle: that's it from us unless you have more questions Judge: I have a lot of questions but I don't think they are going to be answered today Judge: it is very disappointing to be here, not just with any attorney but an attorney who represents the people of this district and takes the oath that he takes to do that Judge: I will take the matter under advisement, I will file a written opinion, I am guided by a recent decision from the Fourth Circuit under similar circumstances The court is in recess Oh boy you guys that was rough So the best case for DOJ is that they can isolate this to just Renfer but he is trying to claim cover from the fact that the (now former) Civil Chief (O'Hare or maybe O'Hara) approved his filings. The question is whether the judge decides to expand his inquiry. Reminder that I have nothing to sell, I get nothing from this and I would probably still do it if nobody read it. Also, if you are aware of upcoming hearings that you would like to see covered, let me know. The hardest part of this is trying to follow scheduling for 100 different cases at once. Currently I am organizing a CLE for the NCBA that will be held in October. I think I'm going to have an hour on the Dangers of AI and this case will definitely get some coverage FWIW, here is what I think actually happened: I think Mr. Renfer was routinely drafting documents using AI and then having his paralegal cite-check them. Over time, as their caseload increased and nobody noticed, they got sloppy. They figured as long as the quote was pretty close, it was good enough Apologies to anyone who followed me today for serious legal content, tomorrow is likely to just be fart jokes Additional coverage:
news.bloomberglaw.com
Further additional coverage:
www.wral.com