Kohls v. Ellison

What happened

Two plaintiffs challenged Minn. Stat. § 609.771, the state's statute on election-related deepfakes, and moved for a preliminary injunction. The Attorney General of Minnesota, Keith Ellison, opposed the motion with an expert declaration from Professor Jeff Hancock of Stanford University, a researcher who studies misinformation and AI.

The plaintiffs found that the declaration cited academic work that could not be located. In a supplemental declaration, Professor Hancock explained that he had used GPT-4o in drafting. The court's order records that 3 citations were defective: 2 cited articles that do not exist and 1 attributed a real article to the wrong authors. These were hallucinated citations (references generated by an AI system to sources that do not exist). The Attorney General then moved for leave to file an amended declaration with the errors corrected.

The court described the admission this way: "Professor Hancock admits that he used GPT-4o to assist him in drafting his declaration but, in reviewing the declaration, failed to discern that GPT-4o generated fake citations to academic articles."

What the court did

On January 10, 2025, Judge Laura M. Provinzino granted in part the plaintiffs' motion to exclude and did not consider Professor Hancock's testimony in deciding the preliminary injunction motion. She denied as moot the motion for leave to file an amended declaration. The order imposed no sanctions.

The order states that the fabricated citations, "even with his helpful, thorough, and plausible explanation," shattered the declarant's credibility with the court. The court also wrote that an "inquiry reasonable under the circumstances" under Rule 11(b) "may now require attorneys to ask their witnesses whether they have used AI in drafting their declarations and what they have done to verify any AI-generated content." The order says that experts who "abdicate their independent judgment and critical thinking skills" in favor of AI-generated answers degrade the court's decisional process. Later courts have quoted that passage, including the Eastern District of New York in Ferlito v. Harbor Freight Tools.

On the same day the court denied the preliminary injunction on grounds unrelated to the declaration.

Where it stands

The plaintiffs appealed the denial of the preliminary injunction. According to plaintiffs' counsel, the 8th Circuit affirmed on February 9, 2026 and later denied rehearing. The exclusion of the declaration was not the basis of the appeal as reported. The Eighth Circuit's February 9, 2026 opinion, reviewed through a text copy for the October 2026 update, held that Kohls lacked standing because his labeled parodies are not deep fakes under the statute, and that the second plaintiff had standing but that the denial of a preliminary injunction was proper because of unreasonable delay in seeking it. The opinion did not reach the statute's constitutionality and does not mention the Hancock declaration or its exclusion. Rehearing en banc was denied, as MediaPost reported on April 2, 2026. The exclusion therefore stands unreviewed.

The pattern has since appeared outside the United States and outside the fabricated-citation frame. Butler and National Disability Insurance Agency turned on a practitioner being unable to say who had inserted the phrase the decision hinged on, and the Landgericht Darmstadt set a court-appointed expert's fee at zero for a report it found machine-produced. Neither involved a citation to a source that did not exist.

An expert declaration is not a brief, and the comparison with Mata v. Avianca is instructive rather than direct: counsel's fabricated citations drew a monetary penalty, while here the declaration was excluded and no sanction issued. Concord Music Group v. Anthropic sits between them, where the source was real and found by the expert, and it was counsel's use of a system to format the reference that corrupted it.

The obligation it engaged

The conduct engaged Clause 3, independent authority. Each citation in a sworn declaration is a representation that the source exists and says what it is cited for. Here the drafting system supplied references that entered the declaration on its own authority, and they were not confirmed against the sources themselves before signature.

It also engaged Clause 4, checkability before adoption. A citation is the most checkable thing in an expert declaration: a competent reader with a library can confirm it in minutes. The court did not question the declarant's field expertise. The defect lay in adopting output that could have been checked and was not. The court's suggestion that counsel ask witnesses about AI use points toward Clause 8, disclosure, and Clause 7, contemporaneous record, since an expert who has logged each use can answer that question precisely.

Sources

• U.S. District Court for the District of Minnesota (via Justia) · January 10, 2025
  Kohls v. Ellison, No. 0:24-cv-03754, Document 46
• Reason (The Volokh Conspiracy) · January 10, 2025
  Misinformation Expert's "Citation to Fake, AI-Generated Sources in His Declaration ... Shatters His Credibility with This Court"
• Hamilton Lincoln Law Institute · February 9, 2026
  Kohls v. Ellison
• U.S. Court of Appeals for the Eighth Circuit (via Justia) · February 9, 2026
  Kohls v. Ellison, No. 25-1300 (8th Cir. Feb. 9, 2026)

What could not be confirmed

The 8th Circuit affirmance (February 9, 2026) and denial of rehearing are reported by plaintiffs' counsel; the appellate opinion was not opened. The Eighth Circuit opinion was read through a text copy rather than the court's slip opinion PDF; no certiorari petition was located as of 2026-10-08.