The Department of Government Efficiency (DOGE) will quickly appeal a court order aimed at prying open the internal structure of the beleaguered pseudo-agency helmed by Elon Musk, the U.S. Department of Justice said in a late Thursday court filing.

In a 13-page ruling handed down on Tuesday, U.S. District Judge Christopher Cooper, a Barack Obama appointee, directed titular U.S. DOGE Service Administrator Amy Gleason to sit for a deposition. The group was also ordered to provide certain documents and answer limited questions issued by nonpartisan government watchdog group Citizens for Responsibility and Ethics in Washington (CREW).

The underlying lawsuit is an effort to enforce Freedom of Information Act (FOIA) requests against the Trump administration’s intra-governmental fraud-and-waste-focused organization. DOGE, in turn, has maintained “it is not an agency subject to FOIA,” Cooper noted.

The court disagreed and entered an injunction requiring expedited processing of CREW’s FOIA requests against DOGE. The plaintiffs then moved for summary judgment on the lawsuit and, seeking a quick bit of finality, moved for expedited discovery.

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Ethics

Lawyer for Infowars host Alex Jones gets reduced suspension over handling of confidential documents

By Debra Cassens Weiss

March 20, 2025, 10:06 am CDT

A lawyer who formerly represented Infowars host Alex Jones has received a two-week suspension for careless handling of confidential documents after an appeals court overturned a lengthier suspension on appeal.

In a March 12 decision, Judge Robin L. Wilson of Waterbury, Connecticut, sanctioned lawyer Norm Pattis after a Connecticut appeals court’s 2024 decision that overturned a six-month suspension. The two-week suspension can be served any time within the next six months, Wilson said.

Law360 and the Darien Times have coverage.

Pattis is seeking a stay of the suspension while he appeals and has asked the judge to credit him for a one-week suspension that he served on the six-month suspension before it was stayed, Law360 reports.

Pattis was accused of violating lawyer ethics rules by careless handling of confidential documents obtained in discovery, including medical records for plaintiffs suing Jones over false claims that the 2012 mass shooting at the Sandy Hook Elementary School in Newtown, Connecticut, was a hoax. Twenty children and six adults were killed by the shooter.

Pattis had represented Jones in a Connecticut defamation case over the false Sandy Hook claims. The plaintiffs obtained a $1.44 billion judgment against Jones.

Pattis’ law firm had released the records to a bankruptcy lawyer who released them to a Texas lawyer representing Jones in a similar case. A paralegal for the Texas lawyer mistakenly released the documents to the opposing counsel.

Pattis has said he thought that the documents could be shared with all of Jones’ lawyers, according to Law360.

Wilson said the sensitive information, which was protected by a court order, “was carelessly passed around from one unauthorized person to another” with no effort by Pattis to safeguard the documents.

“Given the highly litigious nature of this case, Pattis should have been on heightened alert and duty” that the confidential information “had to be handled with the utmost care,” Wilson said.

Wilson wrote in the decision that “there is no acceptable excuse” for Pattis’ misconduct, given his experience.

“Pattis is a well-known attorney who handles high-profile cases on a regular basis,” Wilson wrote. “He was required to appreciate the consequences of his actions when he made the decision” to release the records.

Wilson said factors in mitigation included lack of prior discipline and absence of a dishonest of selfish motive.

Pattis claims that Wilson did not consider character evidence that he introduced in the remand hearing and improperly relied on facts used by the previous judge to determine a sanction.

Pattis told Law360 that the reprimand was too tough under ABA standards for imposing sanctions.

“I understand the passions the Sandy Hook case evokes, but at some point, those passions should cool,” he said. “When do I stop being ‘Alex Jones’ lawyer’ and resume my role as a lawyer who handles tough cases?”

Write a letter to the editor, share a story tip or update, or report an error.

There’s nothing fake about it. The legal industry is facing a big problem with deepfakes. Courtrooms are not yet flooded with a tsunami of deepfake evidence, but with this artificial intelligence-generated technology playing with great success on social media and in fraud schemes, it’s only a matter of time before deepfakes regularly drop into the exhibit list.

Cases with a deepfake component already include:

• United States v. Reffitt: A defendant’s counsel argued that the prosecution’s evidence could be a deepfake.
• Sz Huang v Tesla: A defendant’s counsel argued that video evidence of a party’s principal’s statements could be a deepfake.
• United States v. Doolin: A court allowed introduction of video evidence that the defense argued could have been a deepfake.
• Al-Qarqani v. Chevron Corp.: An attorney submitted an exhibit reciting an allegedly false timeline of facts published in a newspaper that does not exist.

According to March 2023 article the New York Times, many of the apps and tools used to create deepfakes are available to anyone with a smartphone and are free or inexpensive, making it far too easy to create or alter digital evidence.

Amplifying the problem is the fact that “right now, truth is starting to become a matter of degree,” says Maura R. Grossman, a research professor at the University of Waterloo and an attorney and e-discovery special master. Grossman points to examples, such as touching up an exhibit photo to turn a frown into a smile. This small change may be immaterial to a case—or not.

What about changing a few pixels to make it impossible to tell whether someone is holding a phone or a gun in their hand? Materially altered photo and video evidence will be thrown out, but misinformation based on reconfigured reality will undoubtedly be introduced into the courtroom and to juries.

“So much of the justice system relies on interpreting evidence and deciding how much weight to give it,” Grossman says. “And we’re now moving into a world where not only can we no longer rely on our senses to do that, but we may need experts, and that changes the cost. And for the judge, that creates delays and adds a whole new layer.”

Is the most efficient solution a technical or a legal solution?

The legal world is grappling with how to handle deepfake evidence, with procedural solutions currently getting public attention as technology solutions develop more slowly. Here are three approaches on how evidence suspected of being deepfake can be handled in the legal system.

1. Technical experts

Digital forensic experts use machine-learning capabilities in AI-based detection systems to inspect the authenticity of digital media. Deepfake videos with audio are the most difficult to identify because of the human tendency to overlook small discrepancies in a video and focus on the main idea.

Digital forensic experts can apply multimodal analysis to examine multiple data sources and combine techniques. These capabilities range from artifact detection, to frame-by-frame analysis and blink analysis, to luminance gradient analysis and pixel error analysis. After conducting necessary analyses, the expert can render an opinion as to whether the evidence is authentic or altered—or not—based on irregularities found.

Hiring a digital forensic expert can cost from a few hundred dollars for hourly consulting to several thousand dollars per project. For high-profile cases with significant legal implications, fees can be much greater.

Jerry Bui of Texas-based Right Forensics is also a consultant to Interpol. He tells us that, “Deepfakes force us to confront an uncomfortable truth: Seeing is no longer believing. As forensic experts, we’re not just authenticating evidence—we’re trying to safeguard the integrity of the justice system in an era where digital manipulation can rewrite reality.”

2. Court rules

U.S. courts are slowly moving to address deepfake evidence. At the Nov. 8, 2024, meeting of the Advisory Committee on Evidence Rules, a committee of the Judicial Conference of the United States, the committee considered proposed Rule 901(c), authored by Grossman and Judge Paul Grimm, a retired federal judge and professor at the Duke University School of Law.

The rule, if adopted, would govern “potentially fabricated or altered electronic evidence,” reading: “If a party challenging the authenticity of computer-generated or other electronic evidence demonstrates to the court that a jury reasonably could find that the evidence has been altered or fabricated, in whole or in part, by artificial intelligence, the evidence is admissible only if the proponent demonstrates that its probative value outweighs its prejudicial effect on the party challenging the evidence.”

Grimm and Grossman’s proposed rule places burdens on the challenging and the offering parties, as well as the courts, helping to reduce the risk of exposing juries to deepfakes. It is one of several being considered by various judicial committees. Some experts think that no changes are needed to the rules of evidence.

Given the speed at which deepfake technology evolves and improves, changes in rules or procedures might not be useful. In the meantime, decisions will be meted out by the courts based on individual challenges as they arise.

3. Procedural approaches

Courts will use the existing rules to make decisions for the foreseeable future, having hearings on evidence. Judges will have to agree to analyze digital evidence, putting the burden on litigants to prove the legitimacy of the evidence in question, rather than placing the onus on the judge to decide whether the evidence is genuine or deepfake, admissible or not.

One of the critical issues that arises when considering the legal impact of deepfakes is cost—who pays to prove whether evidence is real or fake?

“This becomes an access-to-justice issue,” says Rebecca Delfino, the associate dean of clinical programs and experiential learning at the Loyola Law School at Loyola Marymount University. “In a perfect world, it would be taken care of in a criminal case. If the government wants to prove an audio-visual image is of the defendant robbing a bank, and the defendant claims it’s a deepfake, the government should have to pay for expert analysis because the burden of proof is on the prosecution. That may or may not happen; It depends on the available resources.

“But in the civil context, it’s going to be a significant problem,” Delfino continues. “Even for a simple example—such as the expression in a photograph being digitally altered from a frown to a smile—the individual will need to retain some type of expert.”

In family court, with its many pro se litigants, yet another reality exists—that a photo showing bruises would change someone’s life. Is it real or a deepfake? Who pays the expert to analyze it?

It’s just one of a multitude of questions that remains to be answered on how the legal world will adapt to a rising tide of deepfake evidence. We may not be at the end of reality, but deepfakes are definitely going to rock the legal world as we know it.

Practice tips

1. Look for items of evidence that are too good or too damaging to be true.
2. Deepfakes in social media tend to be video, audio and pictures. You can easily get automated optical character recognition to find text in pictures. You can also get machine transcription of audio and video. Each of these yields searchable text that you can use as a starting point to uncover suspicious material.
3. Plan your deposition or trial, so that you have your exhibit lists ready earlier than you do now. Implore the court to require your adversaries to do the same.
4. Evaluate the exhibits, paying close attention to those with audio, video or picture formats. Interview your witnesses, and challenge suspicious content. Don’t wait until the day of testimony.
5. Be prepared to engage a computer forensic examiner to evaluate the evidentiary quality of an item suspected of deepfake.

See also:

Is the legal system ready for AI-generated deepfake videos?

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Chuck Kellner is a strategic discovery adviser at Everlaw. Kellner has worked as an expert on e-discovery protocols, proportionality and cost of e-discovery, findings on computer forensic examination, and requirements for defensible search and review.

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Mind Your Business is a series of columns written by lawyers, legal professionals and others within the legal industry. The purpose of these columns is to offer practical guidance for attorneys on how to run their practices, provide information about the latest trends in legal technology and how it can help lawyers work more efficiently, and strategies for building a thriving business.

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Interested in contributing a column? Send a query to [email protected].

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

Historically, the legal profession has been slow to embrace emerging technologies. E-discovery software, however, was an exception, largely because Congress amended Rule 26(f) to the Federal Rules of Criminal Procedure, which required its implementation. While e-discovery adoption was not always enthusiastic, it was notable, representing one of the first times legal professionals truly leaned into modern technology.

Initially, e-discovery software was cutting-edge, offering legal professionals the ability to sort through and categorize massive amounts of electronically stored information for production in litigation matters. Over the years, significant advancements in this category of software were few and far between. Systems transitioned from premises-based systems to the cloud—an important change—but truly innovative updates were rare.

In November 2022, generative artificial intelligence tools became widely available to the general public, which laid the foundation for the next stage of innovation in discovery software. Since then, more than 10 companies have integrated this technology into their products.

With generative AI features embedded in e-discovery tools, the identification, collection, preservation, processing, review and analysis of relevant electronic documents are simplified. The software can also assist with rapidly analyzing large volumes of data, identifying patterns and providing insights overlooked during manual review. Some platforms even include generative AI-driven advanced search capabilities, which enable more accurate keyword searches, tagging and redaction.

Choosing e-discovery software with generative AI features

If your law firm is interested in exploring how generative AI can improve the e-discovery process, first assess your firm’s specific needs and how these tools will integrate into your litigation workflow. What are the biggest challenges when managing electronically stored information? Which tasks consume the most time? How can generative AI streamline the process by automating document review, categorization or privilege identification?

Next, consider the tools that your firm is currently using. Do they include generative AI features, or is generative AI development on the product road map? Are there integrations available that would provide the functionality that you’re seeking? If your current providers are expanding their AI capabilities, it may be more efficient to adopt those updates, rather than implementing an entirely new platform.

Trusted providers should be the first place that you look before exploring new vendors. Leveraging existing tools with AI enhancements can minimize disruption, reduce onboarding time and ensure consistency in your firm’s workflows.

Vetting e-discovery providers

When your firm adopts cloud-based e-discovery tools, you are entrusting a third party with sensitive client data. Ethical obligations require you to vet the provider thoroughly, which includes reviewing data security measures, storage locations, access controls and backup policies to ensure compliance with professional responsibilities.

For AI-enhanced platforms, it’s also essential to understand the accuracy of AI-generated outputs, how the provider protects user data, and whether queries will contribute to training AI models.

Finally, whenever possible, take advantage of free trials or demos to test usability and determine whether a platform aligns with your firm’s needs.

With these considerations in mind, let’s explore AI-powered e-discovery tools.

E-discovery tools with generative AI features

  • Reveal: Offers an AI-powered platform featuring “Ask,” a generative AI search tool that facilitates natural language queries and streamlines document review and analysis by providing verifiable insights and summaries.

  • Relativity: Provides “Relativity aiR,” a suite of AI tools designed to enhance review to gauge the responsiveness of documents; case strategy to create case summaries and timelines; and privilege review, which accelerates the identification of privileged information.

  • DISCO: “Cecilia” is its generative AI tool that translates and summarizes documents and depositions, enables interrogation of evidence or individual documents, generates timelines, and automates document review.

  • Everlaw: Features the “EverlawAI Assistant,” which integrates with Everlaw’s Storybuilder and document review products. Using a Q&A format, it provides verifiable outputs that expedite document review and surface critical information to assist in crafting convincing arguments.

  • Exterro: “Exterro Assist” is a generative AI tool embedded in the company’s e-discovery and legal governance solutions. With it, users can query the system using natural language to obtain contextually relevant results. It can also be used to automate workflows, summarize cases and documents, and create reports.

  • Lexbe: Offers “CoPilot,” a generative AI-powered feature that summarizes documents, extracts key details and improves review efficiency. This tool enables legal teams to understand evidence and develop case strategies quickly.

  • HaystackID: HaystackID’s “Core Intelligence AI” automates key e-discovery tasks, such as data classification, document summarization and the identification of sensitive information. It helps legal teams manage large volumes of data, speeds up review and streamlines the process of locating relevant and privileged documents.

  • eDiscovery Assistant: For e-discovery practitioners, eDiscovery Assistant also integrates generative AI technology into its software. The functionality enables the generation of concise caselaw summaries, allowing legal professionals to assess the relevance and implications of judicial decisions swiftly.

Driving change

Having led the legal profession’s first major shift to digital workflows, e-discovery is once again driving change—this time through AI. With so many companies prioritizing generative AI development, e-discovery practitioners have more options than ever. As the technology improves, deeper integration will increase efficiency and introduce new capabilities.

Generative AI innovations are providing legal teams with an expanding set of tools to streamline document review, enhance predictive analysis, and uncover insights that might otherwise go unnoticed. As the technology evolves, deeper integration will further improve efficiency and introduce new capabilities, reinforcing e-discovery’s role as a key driver of legal innovation.

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Nicole Black is a Rochester, New York-based attorney, author and journalist, and she is the principal legal insight strategist at MyCase, a company that offers legal practice management software for small firms. She is the nationally recognized author of Cloud Computing for Lawyers and is co-author of Social Media for Lawyers: The Next Frontier, both published by the American Bar Association. She writes regular columns for ABAJournal.com and Above the Law, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. Follow her on X (formerly Twitter) @nikiblack, or she can be reached at [email protected].

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

Ari Kaplan recently spoke with Lynn Tubalinal, the director of litigation support at Dykema, and Julia Voss, the director of litigation support and e-discovery at UB Greensfelder.

Both are among the industry leaders who contributed to the recently published report Advancing Litigation Support to Fuel Growth in a Changing Legal Market, supported by Opus 2.

They discussed the effect of the increasing volume and variety of data, how a team knows that it is time to upgrade its technology, successful strategies for driving adoption, and effective generative artificial intelligence use cases.

Ari Kaplan: Tell us about your background and your current role.

Lynn Tubalinal: I started my career as a paralegal and leveraged my technical background into a litigation support role. I began to lead teams at Sidley Austin, where I spent eight years, and three and a half years ago, I moved to Dykema.

Julia Voss: I am an antitrust litigator turned e-discovery professional. Twenty years ago, I had one of the more significant cases in the firm, while the Federal Rules of Civil Procedure were changing. I was tasked with figuring it out and then started teaching my peers about those developments. So in 2014, when the firm decided that a lawyer should lead litigation support, they asked me to move into that role. I have been the director of litigation support and e-discovery for 11 years.

Ari Kaplan: Did anything in the Advancing Litigation Support to Fuel Growth in a Changing Legal Market report surprise you?

Lynn Tubalinal: What is really surprising to me, and it’s not necessarily related to the content overall, is that we are all going through the same issues and figuring this out as we go. In these roles, you tend to feel like you’re on an island and don’t hear about what everyone else is experiencing until you begin talking to them. In this fast-paced industry, we don’t always get to speak to one another and connect. Through these reports, I could relate to the perspectives of my peers and identify strategies that could work for us internally and as an industry.

Ari Kaplan: One theme in the report was the increasing volume and variety of data. What effect do you expect this trend to have?

Julia Voss: The growing data volumes are driving more litigators to realize they need a technical solution to manage their dockets. When they had small cases with a few hundred documents, they could manage, but that is no longer possible. The variety of data is the most complex issue today because many different data sources are available. Every day it seems as if there’s a new app or an update to the phone or Microsoft. Litigation support professionals are constantly chasing updates and developing new methods for collecting data. There was a time when we felt like we knew e-discovery because we could effectively collect emails. Then Teams came along, followed by Slack and then WhatsApp, and now, it feels like a never-ending cycle of chasing the newest app.

Ari Kaplan: What advice would you offer to others who are managing these changes?

Lynn Tubalinal: Don’t get overwhelmed. We are all going through this at the same time. Identify what works best for your team. Meet with your peers, and discuss specific issues, like processing unique data types and learn which solutions you can offer to the case team. It is typically not a single solution. You may need different applications for some instances, such as those with modern attachments. We focus on understanding the case team’s challenges to help develop a holistic strategy, rather than solely provide technical support. They are our internal clients, and we need to help them communicate more effectively with the firm’s external clients. It can really be easy to get overwhelmed because there are many different data types, and you will not be the expert on everything, but rely on those who are the experts and get information from them.

Ari Kaplan: Outdated technology, specifically case management, was another theme in the Advancing Litigation Support to Fuel Growth in a Changing Legal Market report. How do you know when it’s time to explore a new solution, and what are your tips for others as they select new applications?

Julia Voss: You start to realize it might be time to look at a new solution when people aren’t using the one you have or there is better technology that can provide more support. Focus on listening to the people around you to understand their evolving needs better. The hardest part of exploring a new solution is finding people with time to test the options and help determine the best way to move forward, especially with all the technology available due to developments in generative AI. With many things changing at once, you need a group of people who understand what your technology is doing and what a new product could improve.

Ari Kaplan: Does outdated technology contribute to a lack of adoption?

Lynn Tubalinal: Litigation support teams must always balance the use of outdated technology with the cost of moving to a newer, faster and better solution. Getting teams to buy into that upgrade can be a challenge. As technologists, we are enthusiastic about improving our tools, but cost, adoption and other variables factor into the ultimate decision to change.

Ari Kaplan: What strategies have been successful in encouraging adoption in your firm?

Julia Voss: Presenting the attorneys with the benefits instead of highlighting features alone is essential. The most effective strategy is to begin with a small team that pilots the application and presents the results to influence adoption. Once users see results, they are more likely to take advantage of the new tool.

Ari Kaplan: Generative AI has been and will continue to be a hot topic. How are you using AI in your firm, and what have you learned from your experiences so far?

Lynn Tubalinal: There are different types of AI, not just generative AI, and we have been utilizing more traditional AI in our workflows for years. We just purchased a generative AI component for our e-discovery document review platform and are excited to deploy it. I’m trying to identify my champions, who can use it in their matters and provide honest feedback. Most lawyers want to see results, rather than the nuts and bolts of how the technology works. Based on the impressions of generative AI that I have heard, everybody’s waiting to see what others are doing. Nobody wants to be behind the curve, and we want to adopt it, but we’re cautiously treading into the arena.

Julia Voss: We have also been using different kinds of AI for a long time, but generative AI is the obvious new shiny toy. We had been testing generative AI in our document review platform for a few months and are starting to expand access to grow adoption. For resources and training, we need to persuade the professionals on our team to allocate the time to update their skills using generative AI products, so that the great people we have can continue to help the legal teams move forward.

Ari Kaplan: What is your team doing in 2025 to maintain its competitive edge?

Lynn Tubalinal: Ensuring that the talent that we have can utilize our full suite of tools and be our champions. Education and marketing are paramount. I spent much of 2024 marketing my team because not everyone fully understands what we do. My team is just trying to get the work done but may not necessarily know how to market the team while they are supporting others. I have been working on that internally by encouraging more direct support, such as a phone call over an email or Teams chat. We are moving back to basics to better showcase our talent and capabilities.

Julia Voss: What didn’t surprise me about this report is that we’re all trying to do some of the same things. We are internally rebranding our group as the data intelligence team. We are showcasing the skills of our technologists and e-discovery counsel to raise their profile and highlight where they can provide support, so the trial teams can focus on the merits of their cases.

Listen to the complete interview at Reinventing Professionals.

Ari Kaplan regularly interviews leaders in the legal industry and in the broader professional services community to share perspective, highlight transformative change and introduce new technology at his blog and on iTunes.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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Trials & Litigation

4th Circuit upholds $1M sanction for law firm that tried to ‘sabotage’ federal court’s authority

By Debra Cassens Weiss

October 29, 2024, 3:50 pm CDT

A federal judge had inherent power to impose a $1.05 million sanction against a Maryland law firm for asking state courts to order an end to U.S. district court litigation, a federal appeals court ruled last week.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, affirmed the sanction against Napoli Law, which was accused of breaching a contract to share attorney fees promised in a referral deal. Napoli Law had filed lawsuits in two New York state courts that sought an order for the plaintiff, the Keyes Law Firm, to dismiss the federal case.

“District courts are not powerless to act in the face of contumacious conduct so expressly designed to undercut, and even sabotage, their adjudicative authority,” the 4th Circuit said in an Oct. 24 opinion by Judge J. Harvie Wilkinson III, an appointee of former President Ronald Reagan.

Napoli Law had filed the state court suits after the district court in Maryland rejected its motion to dismiss the fee case.

“In every practical sense,” Wilkinson said, “Napoli asked a state court in New York to overrule a federal district court in Maryland. It is hard to imagine a more flagrant challenge to the district court’s authority or a more obvious spur to litigation hither and yon.”

The 4th Circuit rejected Napoli Law’s argument that federal courts only have power to sanction conduct outside the courtroom when it is in direct defiance of a court order.

“To ask a district court to foresee and expressly prohibit through court order every conceivable abuse of process is to ask it to chase its tail,” Wilkinson wrote. “Litigation is complicated enough as it is. District courts should not have to wage a sprawling, three-front war to defend their rightful role.”

Law360 and the Maryland Daily Record have coverage of the decision.

The sanction against Napoli Law followed a December 2019 verdict of more than $861,000 for the Keyes Law Firm. It also followed a previous sanction of nearly $317,000 against Napoli Law for defiance of discovery orders.

The second sanction was for the state court suits and “other bad-faith misconduct,” the appeals court said. “The full list of Napoli’s sanctioned misconduct is long and troubling. It included repeated defiance of court orders, frivolous motions, and last-minute document dumps, to name just a few examples.”

Lawyer Paul J. Napoli formed Napoli Law after the breakup of Napoli Bern Ripka Shkolnik, according to Law360. The suit by the Keyes Law Firm had claimed that the prior firm violated fee-sharing agreements for referrals of asbestos cases. The Keyes Law Firm’s suit named 17 defendants alleged to be alter egos of the original firm and lawyer Napoli, according to Law360.

Marc Bern, a former Napoli Bern name partner, settled the case and was dropped from the Keyes Law Firm suit.

In a statement to Law360, lawyer Napoli said Napoli Law and Napoli Bern are distinct entities. The appeals court disregarded the distinction and overlooked the fact that many of the underlying cases have concluded through settlement or dismissal, he said.

“Keyes consistently held the misconception that there were still tens of millions in fees outstanding, despite having already received millions, a view the jury ultimately sided with us on,” Napoli said. “In the end, it became evident that we had prevailed in the underlying case. The firm is evaluating further briefing to remedy these misconceptions.”

Louis Malick of the Keyes Law Firm told the Maryland Daily Record that the firm is pleased with the 4th Circuit’s decision.

“It sends a strong message to certain members of the profession that the sort of tactics employed in this case will not be tolerated and that district judges have ample authority to sanction misconduct,” Malick told the Maryland Daily Record in an email.

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Ethics

District attorney ‘paid little attention to the five-alarm fire’ in high-profile case and should be disbarred, panel says

By Debra Cassens Weiss

September 16, 2024, 11:07 am CDT

A Colorado district attorney should be disbarred mostly for her “absence at the helm” in a high-profile murder case in which prosecutors failed to turn over sufficient expert witness information to the defense, leading to the exclusion of experts, according to a Colorado disciplinary hearing board.

In a Sept. 10 decision, the board recommended disbarment for District Attorney Linda Stanley of the 11th Judicial District in Colorado. She has the option of appealing the order.

The Denver Post (via the Legal Profession Blog), the Associated Press and Law360 have coverage of the decision.

The disciplinary board said Stanley failed to adequately oversee the murder prosecution of Barry Morphew. She also initiated a baseless domestic-abuse investigation of the presiding judge who barred many of the prosecution’s expert witnesses.

Morphew’s wife disappeared on a bike ride in May 2020. The prosecution dropped the charges in April 2022, nine days before the scheduled start of the trial. Morphew has said he is innocent.

Stanley sought the probe of the judge after hearing that his ex-wife was an advocate of for domestic-abuse victims. The ex-wife told Stanley’s investigator that she had never been abused.

Stanley also made improper remarks to the media in the Morphew case and a fatal child-abuse case, the board found. Stanley had said she thought that her remarks in the second case were off the record.

Stanley’s “absence at the helm” in the Morphew case ended with it “running aground,” the board said in an opinion by Presiding Disciplinary Judge Bryon M. Large.

Discovery issues included a massive amount of information that the sheriff’s office delivered on a hard drive to prosecutors without a useful organization. A hard drive of the information was hand delivered to the defense. But bandwidth issues made integrating the material into an e-discovery platform difficult.

In addition, the lead prosecutor on the case said he felt taxed and overwhelmed. He resigned in October 2021. A replacement agreed to work only part time and had trouble accessing discovery information online.

Stanley “was aware, from the time the sheriff’s office delivered to her office a ten-terabyte hard drive of information, that the sheer volume of disorganized, unlabeled discovery promised to pose a problem for the prosecution,” the hearing board said. “The prosecution never truly had a command of the universe of discovery.”

After the lead prosecutor resigned, Stanley failed to designate a new lead counsel, creating confusion.

“Lawyers pointed us to no one—or worse still, to one another—when asked to identify lead counsel,” the hearing board said.

Stanley also failed her team when it became apparent that it was struggling to compile expert-witness information before a deadline and when she learned that the defense was seeking to exclude expert testimony because of failings, according to the hearing board.

Although Stanley “was aware of these very serious developments, she paid little attention to the five-alarm fire and instead relied on [two other lawyers] to extinguish the blaze,” the hearing board majority said.

Stanley’s “failure to ensure her team interviewed experts, reviewed expert reports and statements, and disclosed all facts and data underlying those statements represents an abdication of her supervisory duties,” the majority concluded.

Stanley’s “failure to rise to the moment when so much was at stake” cannot be overlooked, the majority said.

A dissenting panel member, Sherry A. Caloia, would have imposed a suspension of two and a half years rather than disbarment. She expressed concern that the Morphew case “has undergone an extensive amount of Monday-morning quarterbacking.”

Stanley “put very capable and experienced lawyers in charge of the Morphew case,” and she relied on their expertise, Caloia said.

Stanley is a 2010 graduate of the University of Denver Sturm College of Law who previously worked as a police officer and a truck driver. When she took office, she said it was buried in a backlog of cases and hampered by prosecutorial vacancies.

Steve Jensen, Stanley’s lawyer, told the Denver Post that he and his client disagree with the decision.

“This was a hard-fought trial but we do not think that Ms. Stanley’s conduct deserves disbarment, period,” he said. “And I believe Ms. Stanley is a good person and also an ethical attorney.”

Jensen told the Associated Press that she was a district attorney in a rural area and didn’t have much experience in high-profile cases, she had fewer resources than prosecutors in urban areas, and she had a difficult time finding prosecutors to work on the case.

Jensen told the Associated Press that he and Stanley were considering whether to appeal.

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3. Longtime prosecutor resigns after judge tosses…

Prosecutors

Longtime prosecutor resigns after judge tosses him from case, citing Perry Mason-type revelations

By Debra Cassens Weiss

March 14, 2024, 10:09 am CDT

Longtime Miami-Dade County, Florida, prosecutor Michael Von Zamft has resigned after a judge disqualified him and a colleague from the resentencing of an alleged gang leader convicted of four murders.

Judge Andrea Ricker Wolfson of the 11th Judicial Circuit Court of Florida in Miami-Dade County said newly discovered evidence suggested that witness testimony had been manipulated in the prosecution of gang leader Corey Smith, and that jailed witnesses had been granted favors, including conjugal visits, for their cooperation.

Wolfson also cited a recorded phone call between Von Zamft and a jailed witness that could be viewed as a “cryptic message” about eliminating an unreliable witness, although the judge did not accept that interpretation.

The Associated Press, the Miami Herald, Local10.com and Law.com have coverage of Wolfson’s March 6 decision.

“On television, Perry Mason, defense attorney extraordinaire, always managed to find the smoking gun at the end of every episode,” Wolfson wrote. “In real life, this happens very rarely. It happened here.”

Wolfson tossed Von Zamft from the case, saying he had a “prosecutorial philosophy of winning at all costs.” She also disqualified a second prosecutor who “emphatically argued” that no unethical conduct had happened, she wrote. But she rejected a request to disqualify the entire Miami-Dade state attorney’s office.

Smith was being resentenced because he was sentenced to death in two of the murders based on less-than-unanimous juror votes, a practice that was banned in a 2017 Florida law.

Wolfson cited evidence supporting disqualification presented in a multiple day hearing “regarding over 20 years of allegations of misconduct” in the case.

Wolfson said the state’s treatment of discovery in the case “has been questionable throughout the litigation process.” Multiple representations by Von Zamft regarding discovery “can best be described as the continuous movement of the goal line away from the defense team,” she said.

She also cited evidence of witness coordination.

Three cooperating witnesses had testified that they had been taken to the Miami Police Department’s homicide unit to coordinate testimony in the Smith case. One of those witnesses had first made the claim in a January 2023 affidavit, but he changed his story after meeting with two prosecution investigators allegedly sent by Von Zamft.

Further evidence included a recorded August 2022 phone call between Von Zamft and a co-defendant, Latravis Gallashaw, who became a cooperating witness. During the call, they discussed problems with witnesses in the Smith case.

Gallashaw asked whether Von Zamft had considered “rehabilitating” an inmate named Jones. Von Zamft said there had been a problem with Jones’ contradictory statements. Von Zamft said he was trying to arrange a prison courtyard meeting between Gallashaw, Jones and an inmate who was a witness in another case, but his request was turned down.

“But the gun did not stop smoking there,” Wolfson said, carrying on her Perry Mason reference.

In the call, Von Zamft complained that Tricia Geter, a cooperating witness and Smith’s former girlfriend, was unpredictable. She gave full and complete testimony in the prior trial, however, he said.

“If I call her and she refuses, then I will find a way to make her unavailable, and then I can read her whole testimony,” Von Zamft said.

“You would want to do that?” Gallashaw asked.

Von Zamft replied that he didn’t want to do it.

“I’d rather she testified and did a good job. But can I count on it? No,” Von Zamft said.

Wolfson said the phone call “totally and completely corroborates Ms. Geter’s testimony that she got mad at Mr. Von Zamft in 2023 after he told her that if she was dead, he would simply read her prior testimony into the record.”

“It is important to reiterate the context of the interaction between Mr. Von Zamft and Mr. Gallashaw,” Wolfson wrote. “Mr. Gallashaw is a convicted murderer in a case that involves witness elimination. Mr. Von Zamft, a highly trained lawyer, knew who he was talking to. At best, Mr. Von Zamft’s use of the words ‘make her unavailable’ is reckless considering the audience.

“To be clear, this court does not believe that Mr. Von Zamft was sending a cryptic message to Mr. Gallashaw to eliminate Ms. Geter. However, reasonable minds may reach a different conclusion based on the totality of circumstances in this case.”

Geter told the Miami Herald that she fears for her life because of threatening messages that she has received. She learned of the phone call about making her unavailable about two weeks ago.

“Why would you tell him you don’t want me available?” Geter asked in a newspaper interview with the Miami Herald. “It’s unethical that this officer of the state attorney’s office would be conspiring with a known killer.”

Wolfson sent a copy of her opinion to the Florida Bar. Von Zamft told the ABA Journal that because the matter has been referred to the bar, his attorney has instructed him not to comment.

Special counsel Jack Smith ridiculed a “conspiracy theory” recently advanced by former President Donald Trump about the genesis of the Mar-a-Lago classified documents case in a Monday court filing.

Earlier this month, the 45th president filed a motion requesting “discovery and a hearing concerning selective and vindictive prosecution.” Trump’s attorneys argue that a separate special counsel’s decision not to indict President Joe Biden over his own retention of classified documents shows the Department of Justice is discriminating against their client and acting with “political animus.”

On Monday, in a filing stylized as a surreply, Smith also referenced special counsel Robert Hur’s decision not to indict Biden.

Typically cautious with new technology, attorneys are dipping their toes into “a sea change” of new generative artificial intelligence tools for e-discovery, says Mary Mack, CEO and chief legal technologist at Electronic Discovery Reference Model. “We’re seeing more and more interest in the educational programs that we run on generative AI.”

She adds: “This change is going to be fast, but fast in lawyer terms.”

A host of vendors have produced generative AI tools for e-discovery. Some, like CoCounsel, offer research and document review within a larger suite of capabilities. LexisNexis released Lexis+ AI, a platform for case research and document drafting. Meanwhile, Lighthouse, Everlaw and Relativity focus specifically on e-discovery tasks.

Despite a cloud of concerns over client confidentiality, “ChatGPT has created this comfort level and belief because [the clients have] played with it, and it creates these magical responses,” says Ian Wilson, founder and CEO of Servient, an e-discovery platform.

Generative AI’s strengths include sorting documents by conversation topics and speakers, creating a timeline of who talked to whom, writing draft reports and serving up links to the actual documents. Attorneys using Cloud Court, software that mines and analyzes testimony outcomes, for instance, can learn that “if you ask a question about this specific topic, the witness is probably going to pause and get upset,” Mack says.

“Whether it’s a deposition transcript or a hearing transcript, the ability to summarize and reach out into other datasets to say, ‘find more like this’ will also be very impactful,” says Janet Sullivan, White & Case’s e-discovery counsel and global director of practice technology.

Expectations have changed around higher-stakes areas like privilege logs. A year ago, vendors were focused on building tools to allow humans to make decisions and explain those decisions efficiently, says Jay Worthington, a member of Cloud Court’s board of advisors. “Now, they’re all racing as fast as they can to build tools that will automate that decision loop.”

Not so fast, says Maura Grossman, a research professor in the computer science school at Canada’s University of Waterloo. Grossman co-wrote a groundbreaking 2011 paper about how technology-assisted review, which uses algorithms to classify documents based on input from expert reviewers, could be more effective and efficient in e-discovery than what had been the gold standard up to that point: manual review.

As far as generative AI, it remains to be seen “whether people sort of get bored of hype or somebody can actually show that it actually has uses that are really efficient and effective,” the 2016 ABA Journal Legal Rebel says. “It’s like Star Wars, and it looks cool. If it catches on, that’s hard to predict—along with whether consumers will perceive this as having more risk than, say, technology-assisted review.”

Experts agree users should stay away from open-source options like ChatGPT. It’s known to hallucinate, and it retains prompt and other input information, potentially compromising client confidentiality.

Instead, opt for software with a commercial license and have contracts with protective orders committed to not saving prompts or sharing information, Mack says.

Carefully craft prompts, and avoid asking for information beyond the bounded dataset, Worthington says.

“The risk of falling into a hallucinated trapdoor increases exponentially when you step out of bounded data universes,” he adds.

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This story was originally published in the February-March 2024 issue of the ABA Journal.

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