“The statements made by Mr. Kachouroff to the Court in this matter do not inspire confidence.”
In a decision issued on Thursday by Judge Nina Wang of the District of Colorado, the court addressed the defamation suit brought by Eric Coomer against defendants relating to claims that he used his role at Dominion Voting Systems to influence the outcome of the 2020 presidential election. After trial, the jury returned a mixed verdict in favor of the plaintiff, including a punitive damages award directed at Frankspeech.
[A.] The Initial Order to Show Cause and Sanctions Order
Before trial, the plaintiff filed a motion in limine. The defendants answered with a brief that contained “almost thirty defective citations.” … Following questions from the court at the Final Pretrial/Trial Preparation Conference, Mr. Kachouroff acknowledged that he had employed artificial intelligence (“AI”) to draft the response brief. He further stated that he had delegated the task of citation verification for the brief to his co-counsel, Jennifer DeMaster (“Ms. DeMaster”)…. The Court found that imposing a $3,000 sanction on Mr. Kachouroff and his law firm, together with a $3,000 sanction on Ms. DeMaster, was the “least severe sanction adequate to deter and punish” the defense counsel in this instance. The Court opted not to extend the sanction to the Defendants themselves.
[B.] The Second Order to Show Cause
Following trial, and after the Court’s first sanctions order, the parties submitted post-trial motions. The plaintiff sought to augment the punitive damages award against Frankspeech under Colorado law. In the relevant portion, Frankspeech’s responsive brief argued that such an award would run afoul of 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 Post-Trial Motions Order, the Court noted that the Capital Solutions citation is flawed for two reasons. First, Capital Solutions is a district court decision, even though Frankspeech mistakenly treated it as though issued by the Tenth Circuit. Second, Capital Solutions does not support the proposition that a jury’s determination of punitive damages is “entitled to finality” under the Reexamination Clause. The Court explained that a reasonable reading should have alerted defense counsel to this error. 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 characterization of Capital Solutions’ holding and in labeling it as a Tenth Circuit decision. Although he cannot explain why the error occurred, he contends that Capital Solutions’ discussion of Tenth Circuit precedent is relevant to the case. He asserts that he conducted citation checks for the brief and did not rely on AI for research beyond Westlaw. Finally, he argues that sanctions are unwarranted because the error is minor and “the legal principle for which [he] cited Capital Solutions is good law.”
The Court is highly skeptical that the misrepresentation related to Capital Solutions was merely a human mistake. True, a single erroneous reference to a Tenth Circuit case could be dismissed as a typo, but the Response repeats the same apparent mistake twice in rapid 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)….” Moreover, this type of misattribution—presenting a valid case but assigning it to the wrong court—amounts to a form of judicial error that has already appeared in this matter. For instance, in a prior brief that 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)” for support. While the case name and reporter are correct, the decision did not come from 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 earlier brief stated that “the Tenth Circuit… specifically addressed” a particular 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). Taken together, these errors suggest a type of misstep that one would not expect from a seasoned attorney.
Moreover, Mr. Kachouroff’s statements to the Court in this matter fail to inspire confidence. He now attests, “I did not use any Generative Artificial Intelligence program to create Document 404, with the exception of Westlaw for legal research.” Yet he has previously claimed that he “routinely” employs AI tools to craft his arguments. And even though he insisted in response to the First Order to Show Cause that “I do not rely on AI to conduct legal research or locate cases,” he now concedes 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 unmoved by attempts to downplay the conduct. The Capital Solutions citation appears prominently in the Response; it is the sole citation on the first page of the initial paragraph. The Court has already explained that the citation error is obvious. Any attorney—especially one with Mr. Kachouroff’s experience—would or should recognize that a decision reported in the Federal Supplement comes from a district court, not a circuit court. This error would be evident from a quick review of the first page of the Response. The sheer conspicuousness of the mistake demonstrates that the author failed to perform a reasonable review before filing the document. Regardless of AI usage, this is not the kind of error one would expect from an accomplished attorney.
In itself, misquoting a district court decision as binding authority constitutes a material error. This Court is bound by published opinions of the Tenth Circuit and the Supreme Court, not by the rulings of other district courts. By presenting Capital Solutions as a Tenth Circuit decision, Mr. Kachouroff misrepresented the legal significance of its ruling. Yet he seeks to excuse the miscue by saying that Capital Solutions simply described the case’s procedural posture rather than asserting a new legal proposition. The Court disagrees.
The Response distorts Capital Solutions’ holding and the governing Seventh Amendment law. It states, “Among the issues historically entrusted to the jury is the amount of punitive damages—a factual question protected by the Reexamination Clause of the Seventh Amendment. 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’ holding is misleading … Mr. Kachouroff argues that he provided only an imprecise description of the case’s procedural posture. But Capital Solutions’ holding was inseparably linked to its procedural posture; the central question was whether a jury should determine the amount of punitive damages in the first instance, a constitutional issue central to the case. And Mr. Kachouroff still refuses to acknowledge that Capital Solutions relied on the Seventh Amendment’s “trial by jury” clause, not the Reexamination Clause.
This distinction matters because Supreme Court precedent contradicts Mr. Kachouroff’s assertion that the punitive damages figure is a “factual question” whose determination by a jury is protected by the Reexamination Clause. As the Court has noted, the Supreme Court has held that the level of punitive damages is not purely a “fact” tried by the jury, so judicial review of the amount does not violate the Reexamination Clause. Capital Solutions addressed Cooper Industries and expressly disclaimed any reliance on the Reexamination Clause. Yet, even after the Court referenced Cooper Industries in its Order on Post-Trial Motions, Mr. Kachouroff maintains that Capital Solutions “supports the proposition I made” in the Response. That assertion is simply incorrect….
This episode marks the latest in a pattern of Mr. Kachouroff submitting briefs containing citations that misstate existing court holdings. Such conduct undermines the judiciary’s fundamental objective of dispensing justice for the public good—and shakes public confidence in the institution—when lawyers breach duties of diligence and candor owed to the court and the public without consequences.
After reviewing the entire record, the Court assesses that an additional, modest monetary sanction of $5,000 is sufficient to deter Mr. Kachouroff and others in similar circumstances from repeating this conduct. The Court will not refer Mr. Kachouroff to the Virginia Bar for disciplinary action. In issuing this decision, the Court relies on Mr. Kachouroff’s representation that he has stepped back from active trial-level litigation beyond matters necessary to wrap up existing obligations, including the current show-cause proceedings and limited local-counsel duties in one remaining case, due to health concerns and an intention not to return to trial work after a 25-year career.
{Counsel has filed a Motion for Protec[ti]ve Order to Restrict Public Access (“Motion to Restrict”), seeking to limit public access to a Second Affidavit by Mr. Kachouroff detailing specific health issues…. The Court agrees that Mr. Kachouroff’s private health information ought to remain restricted from public access but respectfully disagrees that there is no justiciable interest in other statements included in the Second Affidavit, given that Mr. Kachouroff relied on that information to support his Response to the Second Order to Show Cause. Accordingly, the Court ORDERS Mr. Kachouroff to provide a publicly accessible version of his Second Affidavit with only private health information redacted….
