Thomas v. U.S. Department of Justice
U.S. District Court, Eastern District of North Carolina, Western Division · E.D.N.C. · North Carolina bar guidance
Conduct
Federal defense counsel cited a Westlaw citation the court could not locate; counsel then told the court the case does not exist and likely came from a web search.
Consequence
Here the court ordered a copy of the case, then granted leave to file an amended memorandum correcting the citation; no sanction or warning was issued.
Lesson
Here a court order to produce one unlocatable case led counsel to concede it did not exist and to seek leave to substitute a real one.
Verified September 30, 2026
- Citation
- Thomas v. U.S. Dep't of Justice, No. 5:25-CV-242-M-KS, Order (E.D.N.C. July 23, 2026) (Swank, M.J.), ECF No. 27; Order (E.D.N.C. July 2, 2026), ECF No. 22
- Decided
- July 23, 2026
Summary
In a federal employee's Title VII and related suit against the Department of Justice, ATF, and several officials, the federal defendants' memorandum supporting their motion to dismiss cited "Bowers v. Transp. Sec. Admin., 2015 WL 3442014, at *2 (E.D. Va. May 27, 2015)." On July 2, 2026, Magistrate Judge Kimberly A. Swank ordered: "The court has been unable to locate this case based upon the citation and case name provided," and directed the defendants to submit a copy of the case to the court and the plaintiff under Local Civil Rule 7.2(c). In a July 15 response, Assistant United States Attorney Katherine Asaro wrote that after searching she did not locate the case: "This case does not exist." She stated that she "likely conducted a Google search" that returned it, that she had not known search engines were "incorporating AI-generated results," and that the citation "does appear to be such a 'hallucinated' case." She apologized, described a Westlaw cite-checking process the office's Civil Division began using in March 2026, and asked leave to file an amended memorandum with a correct citation.
- AI tool:
- Unidentified (the court's July 23 order grants the defendants' motion to correct their "errant citation to a 'hallucinated' case," reciting the motion's own description; defense counsel's response says the citation most likely came from an internet search, possibly an AI-generated search result, and does not name a tool)
How did the court address the AI-related conduct?
The July 2 order set a July 8 deadline for producing the case; the docket lists a defense motion for an extension of time (ECF No. 23, July 8) and an order on it (ECF No. 24, July 10), and the response followed on July 15. On July 23, 2026 (filed July 24), the court granted, "[i]n its discretion," the defendants' "motion to file amended memorandum in support of motion to dismiss to correct Defendants' errant citation to a 'hallucinated' case" (ECF No. 26). Neither order imposes a sanction, orders counsel to show cause, or issues a warning. The magistrate judge's July 27, 2026 Memorandum and Recommendation (filed July 28), which recommends granting the motion to dismiss for failure to state a claim, cites the amended memorandum and does not mention the Bowers citation or AI.
Why does Thomas v. U.S. Department of Justice matter for law firms using AI?
Thomas shows how one federal magistrate judge handled a single unlocatable citation in a government brief: not with a show-cause, but with a one-paragraph order under Local Civil Rule 7.2(c) directing the defendants to produce a copy of the case. The order states only that “[t]he court has been unable to locate this case based upon the citation and case name provided.” It makes no accusation and says nothing about AI.
The explanation came from counsel. The July 15 response, signed by an Assistant United States Attorney, states that “[t]his case does not exist,” that counsel found the citation in two emails she had sent herself, and that she “likely conducted a Google search of Title VII venue and found it in those results.” She wrote that when she drafted the memorandum in 2025 she did not know that search engines were “incorporating AI-generated results” that could include “phantom” citations, and acknowledged that the citation “does appear to be such a ‘hallucinated’ case.” She also described a Westlaw cite-checking review her office’s Civil Division began in March 2026, and said she had rechecked her other pending filings through it.
The court’s July 23 order granted leave to amend “to correct Defendants’ errant citation to a ‘hallucinated’ case,” in its discretion, and the case moved on to the merits; the July 27 Memorandum and Recommendation relies on the amended memorandum. Firms documenting compliance may wish to consider that here counsel attributed the citation, with hedging, to a general web search rather than a dedicated AI research tool, and that the correction path the court accepted was a candid response plus a motion to substitute the citation.
Implications for your firm
Operational steps a firm reading this case may wish to consider documenting. Strategic and rule-application calls belong to your firm's attorneys.
- Verify citations surfaced by general web searches before they enter a brief. Counsel's response traces the citation to notes she emailed herself, most likely from a Google search.
- Document the office-wide checks in place when a filing is made. Counsel told the court that her office's Westlaw cite-checking review began in March 2026, about six months after the memorandum was filed, and would have flagged the citation.
- Consider a prompt, specific response when a court cannot locate a citation. Here counsel's response conceded the case did not exist, apologized, and sought leave to amend, which the court granted.
Sources
Primary sources
- The account of how the citation arose (an internet search, possibly an AI-generated search result) comes from defense counsel's own response (ECF No. 25), not from a finding by the court. The phrase "errant citation to a 'hallucinated' case" in the July 23 order recites the title of the defendants' motion, which the court granted; the court made no characterization of its own.
- The defendants' motion to amend (ECF No. 26), the amended memorandum, and the extension filings (ECF Nos. 23-24, known here only from docket labels) were not read.