From Thursday’s decision by Judge Nina Wang (D. Colo.) in Coomer v. Lindell:
This is a defamation case brought by Plaintiff Eric Coomer (“Plaintiff” or “Dr. Coomer”) over accusations that he used his position at Dominion Voting Systems to interfere with the results of the 2020 presidential election. The case went to trial, and the jury delivered a partial verdict for Plaintiff. The verdict included a punitive damages award against Frankspeech.
[A.] The First Order to Show Cause and Sanctions Order
Before trial, Plaintiff filed a motion in limine. Defendants then filed a response brief that included “nearly thirty defective citations.” … After questioning from the Court at the Final Pretrial/Trial Preparation Conference (“Pretrial Conference”), Mr. Kachouroff eventually admitted that he had used artificial intelligence (“AI”) in drafting the response brief. He also represented that he had delegated citation checking for the brief to his co-counsel, Jennifer DeMaster (“Ms. DeMaster”)…. The Court concluded that a $3,000 sanction on Mr. Kachouroff and his law firm and a $3,000 sanction on Ms. DeMaster was the “least severe sanction adequate to deter and punish defense counsel in this instance.” The Court declined to extend the sanction to Defendants themselves.
[B.] The Second Order to Show Cause
After trial, and after the Court’s first sanctions order, the Parties submitted their post-trial motions. Plaintiff moved to increase the punitive damages award against Frankspeech, pursuant to Colorado law. In relevant part, Frankspeech’s response brief (“Response”) argued that such an award would violate the Reexamination Clause of the Seventh Amendment. The brief stated, “The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury’s determination on this issue [i.e., the amount of punitive damages] is entitled to finality.”
In its Order on Post-Trial Motions, the Court observed that the Capital Solutions citation is defective for two reasons. First, Capital Solutions is a district court decision, even though Frankspeech erroneously referred to it as a Tenth Circuit case. Second, Capital Solutions does not support the proposition that a jury’s determination of the amount of punitive damages is “entitled to finality” under the Reexamination Clause. The Court explained that a reasonable review should have alerted defense counsel to this mistake. And given that counsel had already been sanctioned for “this exact type of error,” the Court ordered Mr. Kachouroff, Ms. DeMaster, and Frankspeech to show cause why they should not be sanctioned again under Rule 11….
[C.] Violation of Rule 11
Mr. Kachouroff concedes that he made a “real error” in both his description of Capital Solutions‘s holding and his reference to it as a Tenth Circuit decision. Although he does not know why the error occurred, he asserts that Capital Solutions‘s discussion of Tenth Circuit precedent is on point. He claims that he cite-checked the brief and did not use AI other than Westlaw for legal research. Finally, he argues that sanctions are unwarranted because the error was minor and “the legal principle for which [he] cited Capital Solutions is good law.”
The Court has a significant amount of skepticism that the Capital Solutions misrepresentation resulted only from human error. True, the Court could write off one erroneous reference to the Tenth Circuit as a typographical error. But the Response makes the same obvious mistake twice in quick succession: “The 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F. Supp. 2d 1149, 1154–56 (10th Cir. 2010)….” And this type of misattribution error—deploying an otherwise correct citation but attributing it to the wrong court—is a form of hallucination that has already occurred in this case. For instance, in the brief that previously led to sanctions, Mr. Kachouroff claimed that the “District of Colorado” had addressed an issue, citing “Ginter v. Northwestern Mut. Life Ins. Co., 576 F. Supp. 627, 630 (D. Colo. 1984)” in support. While the case name and reporter for Ginter are correct, it was not issued by a court in this District. See Ginter v. Nw. Mut. Life. Ins. Co., 576 F. Supp. 627, 630 (E.D. Ky. 1984). Similarly, Mr. Kachouroff’s prior brief asserted that “[t]he Tenth Circuit…specifically addressed” a certain evidentiary issue in “United States v. Hassan,” with a citation to “Hassan, 742 F.3d 104, 133 (10th Cir. 2014).” But Hassan is a Fourth Circuit decision. See United States v. Hassan, 742 F.3d 104, 133 (4th Cir. 2014). Viewed against this backdrop, the nature of the errors in the Response suggests that this is not the kind of mistake a human attorney would make.
Furthermore, Mr. Kachouroff’s statements to the Court in this case do not inspire confidence. He currently attests, “I did not use any Generative Artificial Intelligence program to create Document 404 with the exception of Westlaw which I used solely for the purpose of legal research.” But Mr. Kachouroff has previously represented that he “routinely” uses AI tools to prepare his arguments. And strikingly, despite adamantly attesting in response to the First Order to Show Cause that “I do not rely on AI to do legal research or find cases,” Mr. Kachouroff now admits that “the circumstances at issue here are not, respectfully, the same type of AI generated error in a draft pleading that was the subject of that earlier sanction.”
The Court is also unimpressed by Mr. Kachouroff’s attempts to minimize his conduct. The Capital Solutions citation is located prominently in the Response; it is the only citation in the first paragraph of the first page of the brief. And as the Court previously explained, the citation error is obvious. Any lawyer—especially one of Mr. Kachouroff’s experience—would or should recognize that a case reported in the Federal Supplement is from a district court, not a circuit court. This error would be apparent upon even a brief inspection of the first page of the Response. The obviousness of the error alone indicates that Mr. Kachouroff failed to reasonably review the Response before filing it. Regardless of whether or not generative AI was used, this is not the type of error a seasoned attorney would or should make.
In and of itself, falsely citing a district court case as binding authority is a “material” error. This Court is bound by published Tenth Circuit and Supreme Court opinions, not the decisions of other district courts. By holding out Capital Solutions as a Tenth Circuit decision, Mr. Kachouroff misrepresented the “legal significance” of its holding. Yet Mr. Kachouroff asks the Court to overlook the “citation error” because his “description of Capital Solutions did not involve the assertion of an unsupported legal proposition.” The Court respectfully disagrees.
The Response misstates both Capital Solutions‘s holding and the applicable Seventh Amendment law. In relevant part, the Response asserts, “Among the issues historically committed to the jury is the amount of punitive damages—a factual question within the meaning of the Seventh Amendment’s Reexamination Clause. The 10th Circuit recognized in Capital Solutions…that the jury’s determination on this issue is entitled to finality.” The Court has already explained why this description of Capital Solutions‘s holding is misleading …. Mr. Kachouroff suggests that he merely gave an “imprecise description of the case’s procedural posture.” But Capital Solutions‘s holding was inextricably intertwined with its procedural posture; whether a jury must decide the amount of punitive damages in the first instance was the substantive constitutional question before the court. And Mr. Kachouroff still fails to acknowledge that Capital Solutions turned on the Seventh Amendment’s “trial by jury” clause, not the Reexamination Clause.
This distinction matters because Supreme Court precedent contravenes Mr. Kachouroff’s assertion that “the amount of punitive damages” is a “factual question” on which the jury’s verdict is protected by the Reexamination Clause. As this Court pointed out, the Supreme Court has held that “the level of punitive damages is not really a ‘fact’ ‘tried’ by the jury,” so judicial review of the amount of an award does not offend the Reexamination Clause. Capital Solutions addressed Cooper Industries and expressly disclaimed any reliance on the Reexamination Clause. But despite relying on Capital Solutions and other cases analyzed in that opinion, the Response still cited Capital Solutions in support of the argument that the Reexamination Clause “entitle[s]” a jury’s punitive damages award “to finality.” Even after the Court specifically noted Cooper Industries in its Order on Post-Trial Motions, Mr. Kachouroff maintains that Capital Solutions “support[s] the proposition I made” in the Response. That is simply not true….
This is the latest incident in what is now a pattern of Mr. Kachouroff submitting briefs with citations that “misrepresent[ ] what courts have said.” … The judiciary undermines its own central purpose of administering justice for the public good—and the public’s confidence in the institution—when it permits attorneys to breach their duties, including diligence and candor, owed to the court and the public without consequence….
Having reviewed the entirety of the record, the Court finds that an additional, moderately increased monetary sanction of $5,000 is sufficient to deter Mr. Kachouroff and similarly situated individuals from engaging in this conduct. The Court will not refer Mr. Kachouroff to the Virginia Bar for disciplinary proceedings. In doing so, the Court specifically relies on Mr. Kachouroff’s representation that he has stepped back from “active trial-level litigation other than matters necessary to conclude existing obligations which include the present show-cause proceedings and limited local-counsel responsibilities in one remaining case. I do not intend to return to trial work which I have done for the past 25 years,” due to health issues.
{Counsel has filed a Motion for Protec[ti]ve Order to Restrict Public Access (“Motion to Restrict”), seeking restriction of a Second Affidavit submitted by Mr. Kachouroff detailing specific health issues…. This Court agrees that Mr. Kachouroff’s private health information is appropriately restricted from public access but respectfully disagrees that the public has no justiciable interest in other statements contained in the Second Affidavit, given Mr. Kachouroff’s reliance on that information to support his Response to the Second Order to Show Cause. Accordingly, the Court ORDERS Mr. Kachouroff to file a publicly accessible version of his Second Affidavit, with only his private health information redacted….
