On Monday, U.S. Magistrate Judge Erica P. Grosjean ordered Kevin Little to file a response explaining whether his opposition brief contained deficiencies and, if so, showing cause why he should not be sanctioned for them.
"Failure to fully and candidly comply with this order may result in sanctions in addition to any imposed for deficiencies in the opposition brief," the order said.
That same day, Little filed his 67-page response, in which he admits to using AI software OpenCase to refine and improve an initial draft. Little says his opposition was written and finalized in around three hours over two days.
Little is representing plaintiff Elio Gamez in a complaint alleging two counts of civil rights violations under state and federal law and negligence. On March 3, Little filed a brief opposing defendant County of Fresno's motion for a more definite statement. In it, authority was cited that does not exist, quotes were fabricated and legal representations were made without supporting authority.
"Such issues suggest that attorney Little relied on generative artificial intelligence to draft the opposition brief without ensuring that the generated content was accurate or otherwise supported," Grosjean said.
Little says he used a general AI application for the initial draft of the opposition. Little claims the earliest draft in his possession did not contain any of the hallucinated authorities that the court identified in the order to show cause.
Little then used OpenCase to "refine and improve that draft," including using its cite checking features. The subsequent final draft was "markedly different" and contained the false citations.
"I have been using OpenCase for several months now, after I learned of the dangers of using non-legal AI in a prior case, and I have never had any issues with it providing hallucinated authorities," he said. "It sometimes has not been able to confirm authorities, but when that occurs, I then typically utilize a non-AI legal research software such as Fastcase or Casemine for confirmation purposes."
Little says that had he known OpenCase could hallucinate case authorities, he would have taken the final step he sometimes takes of using a non-AI legal research software, such as Fastcase or Casemine, to do a final cite check. He also acknowledged that it is his responsibility to ensure accurate pleadings are submitted.
"As I have now indicated a few times, I did not know OpenCase had hallucinative capability, or that it would add hallucinated authorities to my prior draft that contained none, as far as I know. I will be mindful of this potential moving forward," he said.
Representatives of the County of Fresno said they have no comment on the matter. OpenCase did not return a request for comment on Tuesday.
Little said in an email Tuesday, "I wish you would await the court's ruling instead of damaging my reputation prematurely. I believe that the court's going new [sic] vacate the [order to show cause] based on the response I filed."
Gamez is represented by Kevin G. Little and Michelle Letricia Tostenrude of the Law Office of Kevin G. Little.
County of Fresno is represented by Nichole Maria Santiago and Mildred K. O'Linn of Manning & Kass Ellrod Ramirez Trester, LLP.
The case is Gamez v. County of Fresno, case number 1:26-cv-00297, in the U.S. District Court for the Eastern District of California.
--Editing by Drashti Mehta.
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