Robert Thackston v. Daniel P. Driscoll, Secretary of the Army

How did the court address the AI-related conduct?

The magistrate judge did not impose a sanction. She wrote that "Plaintiff has not lived up to this certification with this brief," "notifies the District Court that Rule 11(c) sanctions may be appropriate," wrote that the District Court "should consider whether it is appropriate to sanction Plaintiff's counsel under Rule 11(c)," and recommended that the District Court "consider imposing sanctions under Fed. R. Civ. P. 11(c) after Plaintiff has had the opportunity to respond and object". She suggested appropriate sanctions "may include a monetary penalty and/or a requirement to attend a continuing legal education course on the topic of generative AI," and noted that the conduct "may also violate" the Texas Disciplinary Rules, citing Texas Ethics Opinion 705. On the merits she recommended dismissal for lack of standing. Any action by District Judge Fred Biery is not reflected in this document.

Why does Robert Thackston v. Daniel P. Driscoll, Secretary of the Army matter for law firms using AI?

Thackston is a magistrate judge’s referral of the sanctions question, not a sanctions order. Judge Chestney’s Report and Recommendation walks through the reply brief paragraph by paragraph. Palmer v. Shultz, offered as a Rehabilitation Act case, is a Title VII sex-discrimination case that never mentions the Rehabilitation Act, and the quotation attributed to it appears in no case the court could find. Quotations attributed to EEOC v. WC&M Enterprises, Alexander v. Gardner-Denver, and Armstrong v. Turner Industries likewise do not appear in those cases or any other federal case. Fabela v. Socorro Independent School District and E.E.O.C. v. LHC Group were cited for propositions they do not address. “United States v. City of Los Angeles, 595 F.3d 1006” does not exist, nor does a W.D. Tex. decision the brief attributed to “this very District Court”.

On AI, the Report and Recommendation is mostly hedged in its own words, though its sanctions paragraph refers to “his inappropriate use of GenAI.” It draws two separate inferences. From the citations, “[i]t therefore appears that Plaintiff’s counsel likely used generative artificial intelligence … to assist in his research.” From the brief’s style, counsel “may have utilized GenAI to write some or all of his brief,” based on the repeated phrase about the Fifth Circuit including the Western District of Texas: “It strains credulity that an attorney would feel the need to inform judges in the Western District of Texas of the Circuit in which they sit”. The judge noted that the defendant’s reply had also been unable to locate one of the quotations.

The document leaves the decision to the District Court. It recommends that the court “consider imposing sanctions under Fed. R. Civ. P. 11(c) after Plaintiff has had the opportunity to respond and object,” and points to Gauthier v. Goodyear Tire & Rubber Co. (a $2,000 penalty, a generative-AI CLE, and service of the order on the client) as an example. Firms documenting compliance may wish to consider that here the citation findings are made on the record before any sanction decision.