In Mendones v. Cushman & Wakefield, Inc., No.: 23CV028772 (Cal. Super. Sept. 9, 2025), California State Superior Court Judge Victoria Kolakowski found “that a terminating sanction is appropriate” after the Court determined that several exhibits provided by Plaintiffs were deepfake videos and images.

Case Discussion and Judge’s Ruling

In this case, Plaintiffs moved for summary judgment in March 2025. In support, Plaintiffs provided several documents as exhibits. As Judge Kolakowski stated: “Upon review, the Court suspected Plaintiffs’ exhibits 3, 6A, 6B, 6C, 7, 21, 27, 35, and 40 of having been altered or created by generative artificial intelligence (GenAI). For instance, exhibits 6A, 6C, and 36 purport to capture the speech and image of Geri Haas. But, while exhibit 36 appears to capture a real-life interaction, certain characteristics of exhibits 6A and 6C, such as the lack of facial expressions, the looping video feed, among other things, suggested that these exhibits were products of GenAI—i.e., ‘deepfakes.’”

Judge Kolakowski provided several examples of deepfake videos and images in her order, including:

“The Court finds that exhibits 6A and 6C are products of GenAI and do not capture the actual speech and image of Geri Haas. In other words, these exhibits are deepfakes. Here is a screenshot of exhibit 6A:”

“The full video is available at https://drive.google.com/file/d/1xI3xCC6Xdq94PZvz7QCl6M_XDsg8q55k/view. The Court has downloaded a copy of exhibit 6A to preserve the evidence.

Here is a screenshot of exhibit 6C:”

“The full video is available at https://drive.google.com/file/d/1h1ae0izs07kGdF3HKALRvla-cgB1E1gF/view. The Court has downloaded a copy of exhibit 6C to preserve the evidence.”

Comparing these two videos to exhibit 36 (deemed to be legitimate), Judge Kolakowski said:

“While the “person” depicted in exhibits 6A and 6C bears a passing resemblance to the person depicted in exhibit 36, they are not the same person. The accent, cadence, volume, word choice, pauses, gestures, and facial expression, among other characteristics, of the person depicted in exhibit 36 are vastly different from those demonstrated by the “persons” depicted in exhibits 6A and 6C. The “persons” depicted in exhibits 6A and 6C lack expressiveness, are monotone, do not pause at moments where pauses are expected, use odd words choices, and appear generally robotic. Further, the mouth flap does not match the words being spoken. Juxtaposing these three videos together, it becomes clear that whoever the “persons” depicted in exhibits 6A and 6C are, they are not the person depicted in exhibit 36.

The oddities of exhibits 6A and 6C are typical features of videos created by GenAI.”

Judge Kolakowski also found that “exhibit 7 was materially altered”. Here are a couple of image examples of images from that exhibit:

Screenshot of exhibit 7, page 3:

Screenshot of exhibit 7, page 5:

Judge Kolakowski stated: “The lighting, contrast, color, and sharpness of the man depicted in these pictures compared with the lighting, contrast, color, and sharpness of the background shows that the man was stitched into the photograph taken by the Ring camera. A close inspection shows that the background is in black and white, while the man is in color.”

She also found that exhibits 35 and 40 (purporting to be Instagram Zoom iPhone group chats respectively) “are products of GenAI—or, at least, were materially altered.”

Judge Kolakowski also identified several other evidentiary submissions of which she was suspicious, but did “not have the time, funding, or technical expertise to determine the authenticity of Plaintiffs’ statements or conduct a forensic analysis of the suspect evidentiary submissions.”

Rejecting Plaintiff’s attempt to shift the blame to Geri Haas regarding the video testimonial, Judge Kolakowski said: “Assuming the veracity of the metadata, exhibit 6A was captured on an Apple iPhone 6 Plus using its rear camera and running iOS 12.5.5…Here’s the problem for Maridol Mendones: Apple did not introduce Apple Intelligence until iOS18 and required an iPhone 15 Pro, or iPhone 15 Pro Max.”

After a show cause order by the Court on July 11 requiring Plaintiffs to answer several questions and to submit declarations regarding the deepfake videos and images, Judge Kolakowski stated: “The order to show cause why terminating sanctions should not issue against Plaintiffs Ariel and Maridol Mendones for intentionally submitting false testimony to the Court in connection with their motion for summary judgment and Plaintiffs not referred to the Alameda County District Attorney’s Office for criminal prosecution came on for hearing on September 9, 2025, at 2:30 p.m. The Court issued a tentative ruling, which Plaintiffs contested. Plaintiffs did not appear at the hearing and were not excused from appearing. Defendants’ counsel appeared. As the contesting party was not present, the Court affirms its tentative ruling and issues a terminating sanction against Plaintiffs for intentionally submitting false evidence to the Court in connection with their motion for summary judgment.”

Judge Kolakowski found “that referral for criminal prosecution is not appropriate”, stating: “The Court finds that a sanction referring Plaintiffs for criminal prosecution is simultaneously too severe and not sufficiently remedial.”

So, what do you think? Should the Court have referred the case for criminal prosecution over the deepfake videos and images? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Judge Scott Schlegel and Michael Berman for their coverage of the case here and here.

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