The Volokh Conspiracy
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$6K Sanctions for Apparent AI Hallucinations in Coomer v. Lindell / My Pillow Election-Related Libel Suit
From Judge Nina Wang (D. Colo.) today in Coomer v. Lindell:
In preparation for trial in this matter, the Court issued a Trial Preparation Order that set certain deadlines, including for the filing of motions in limine. The Trial Preparation Order further informed the Parties that any pending motions in limine would be discussed at the Final Pretrial/Trial Preparation Conference…. Defendants … filed a Brief in Response to [a] Motion in Limine ("Opposition") [Doc. 283] … [that] contained … "nearly thirty defective citations" ….
[At a hearing,] Mr. Kachouroff [lead counsel for Defendants] was unable to respond [about the defective citations] in a manner that was satisfactory to the Court. Specifically, Mr. Kachouroff indicated that he had delegated citation checking for the Opposition to his co-counsel, … Ms. DeMaster …. [T]he Court ordered Mr. Kachouroff and Ms. DeMaster to show cause why they should not be sanctioned and referred to their respective state bars for disciplinary proceedings….
In [their] Response, Defendants represented that counsel "was unaware of any errors or issues with his response filed 55 days earlier, and had no reasonable opportunity to investigate any problem to be able to engage in constructive discussion about Doc. No. 283." Defendants further asserted that "[a]fter the hearing and having a subsequent opportunity to investigate Doc. 283, it was immediately clear that the document filed was not the correct version. It was a prior draft. It was inadvertent, an erroneous filing that was not done intentionally, and was filed mistakenly through human error. Counsel acted swiftly to rectify the error." Defendants submitted additional materials for the Court's consideration and certified that the record is complete with respect to the Order to Show Cause….
The court was unpersuaded by the Response, and concluded:
Mr. Kachouroff and Ms. DeMaster have violated Rule 11 because they were not reasonable in certifying that the claims, defenses, and other legal contentions contained in Defendants' Opposition to Motion in Limine [Doc. 283] were warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. Nor is this Court persuaded by counsel's contention that that the "correct" version, i.e., 2025.02.24 Coomer Defs Opp to MIL2 (jd) – copy, was prepared and ready to file on February 25, 2025, and the filing of the Opposition at [Doc. 283] was simply an inadvertent error, given the contradictory statements and the lack of corroborating evidence….
[F]ederal courts rely upon the assistance of attorneys as officers of the court for the efficient and fair administration of justice. "… [T]he court is entitled to expect a reasonable level of competence and care on the part of the attorneys who appear before it, and to expect that claims submitted for adjudication by those attorneys will have a rational basis." …
The court had also earlier noted:
Mr. Kachouroff[ stated] that "Doc. 283 represents a clear deviation from what my practice has been, and given the number of errors, it is just as reasonable to presume that the document could have been a mistake, especially when I commented during the hearing that this must have been a draft." But this assertion is belied by similar conduct before a different federal court.
The Court takes judicial notice that, just seven days after this Court issued the Order to Show Cause, the same defense counsel team quietly filed two Notices of Errata regarding their briefing in Pelishek v. City of Sheboygan, No. 2:23-cv-01048-WED (E.D. Wis. Apr. 30, 2025), ECF Nos. 160, 162. Those errata demonstrate the same type of errors in the filed Opposition, including citations to cases that do not exist.
The court therefore imposed $3000 in sanctions on each of the defense counsel, though not on the clients ("[b]ecause Mr. Kachouroff 'confirm[ed] that I did not advise Defendants that I use a myriad of AI tools in my practice such as Microsoft Word's Co- Pilot, Westlaw's AI, Google's Gemini, X's Grok, Claude, ChatGPT, Perplexity, and others'").
For more on the story, see this earlier post.
