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
