Eugene Volokh's Blog, page 115

[Irina Manta] "Can Speech Policy Protect Public Health?" to Appear in Utah Law Review

[Using Speech to Address Public Choice Problems]

Together with Cassandra Burke Robertson and Zoe Robinson, I wrote a new piece forthcoming in the Utah Law Review and whose draft is available here. The abstract is as follows:

Government speech shapes public health outcomes, yet political incentives often lead officials to either remain silent about emerging threats or subordinate scientific evidence to partisan goals. This Essay examines how three factors interact to influence public health: the constitutional status of health-related speech, the political economy of public health policymaking, and the modern information environment. Drawing on insights from public choice theory, we demonstrate how misaligned incentives lead political actors to avoid communicating about health risks or spread misinformation that serves their short-term interests at the expense of population health. The conventional tools of public health policy were developed when official sources could effectively shape public understanding, but today's fragmented information landscape demands new approaches to health communication.

This Essay analyzes both the constitutional framework governing health-related speech and the practical dynamics that complicate effective public health messaging. We propose specific mechanisms to combat harmful misinformation while creating stronger incentives for accurate government communication about health threats. Throughout, we move beyond binary debates about censorship versus free speech to develop approaches that reflect the complex relationship between information flows, political incentives, and public health outcomes. The history of public health challenges—from the AIDS crisis of the 1980s to today's emerging strains of avian influenza—shows how institutional responses often falter. Understanding these dynamics can help shape better responses to current and future health crises.

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[Josh Blackman] Today in Supreme Court History: April 28, 2015

4/28/2015: Obergefell v. Hodges argued.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Ilya Somin] More Evidence that Immigrants - Including Illegal Ones - Have Much Lower Crime Rates than Natives

[A new Cato Institute study further refutes claims that illegal migration is somehow causing a crime wave.]

Claims that illegal immigration is causing a crime wave are ubiquitous on the political right, and likely helped Trump win the 2024 election. But social science studies consistently show that immigrants - including illegal ones - actually have much lower crimes than native-born Americans. A new analysis by my Cato Institute colleague Alex Nowrasteh and political scientist Michelangelo Landgrave is the most thorough and up-to-date assessment yet.

Alex summarizes their findings here:

Our consistent finding is that legal immigrants have the lowest incarceration rates, followed by illegal immigrants, and that native-born Americans have the highest. Illegal immigrants are half as likely to be incarcerated as native-born Americans, and legal immigrants are 74 percent less likely to be incarcerated….

A persistent criticism of Cato's paper in this series is that the native-born incarceration rate is only higher because black native-born Americans have a high incarceration rate (see Table 1 from our paper). It's certainly true that black native-born Americans have the highest incarceration rates of any ethnic or racial group in any immigrant category. However, the high black American incarceration rate does not overturn our results. It merely narrows them. Immigrants have lower incarceration rates even without considering black native-born rates….

Excluding black native-born Americans and black immigrants reduces the native-born incarceration rate by 27 percent, from 1,221 to 891 per 100,000 in 2023 (see Table 1 for reference). Excluding black immigrants barely reduces the legal immigrant incarceration rate to 312 per 100,000, but increases the illegal immigrant incarceration rate to 626 per 100,000. Excluding blacks increases the illegal immigrant incarceration rates because their rate is below that of the rest of the population. The legal and illegal immigrant incarceration rate gap with natives also narrows to 65 percent and 30 percent lower, respectively. Excluding only black native-born Americans and keeping black immigrants in the sample, which doesn't make sense but critics have brought it up, produces almost identical results.

It's worth pointing out that legal and illegal immigrants have lower incarceration rates than their ethnic and racial counterparts in the native-born population in every case. Furthermore, black legal or illegal immigrants do not have the highest incarceration rates. Immigrants don't just have lower incarceration rates than native-born Americans because black Americans have such a high rate, but because immigrants of every racial and ethnic group have lower incarceration rates than their native-born ethnic and racial counterparts.

Nowrasteh and Landgrave find that both legal and illegal immigrants of every racial/ethnic group (black, white, Asian, Hispanic) have lower crime rates than native-born Americans generally, and (with one exception) also much lower rates than native-born whites. The one exception is Hispanic illegal immigrants (incarceration rate of 879 per 100,000), which is modestly higher than native-born whites (741). But even that exception is likely driven by the fact that these figures don't fully control for the fact that illegal migrants are younger and have a higher percentage of males than native-born citizens (young people and men have much higher crime rates than older people and women). Moreover, some crime committed by illegal migrants is a consequence of their illegal status: difficulty finding legal employment likely incentivizes some to participate in illegal markets, where there is more violence than in the legal sector.

In sum, immigration - including the illegal kind - is actually reducing our crime rate, not raising it. There is no immigrant-driven crime wave. Much the contrary.

A common response to such data is to say that any immigrant-driven crime is intolerable, especially if committed illegal migrants. Even one additional murder or rape is one too many!

But this logic implies that any significant population increase is bad. After all, any large group of people inevitably includes at least a few violent criminals. That suggests increases in the birth rate (a high priority for many right-wing pro-natalists) are bad. After all, some of these children will grow up to be criminals! It also indicates the US was wrong to accept the ancestors of most native-born Americans. Some of them were criminals, too!

Claims that crimes committed by illegal migrants are in a different moral universe from those committed by other people are flawed for the same reasons that "I'm for legal immigration" arguments are generally defective. See my discussion of that fallacy here. A murder or rape committed by an illegal migrant is no worse (and no better) than one committed by anyone else.

Ultimately, we should focus on reducing crime rates, not absolute amounts of crime. The latter objective has the perverse implication that a larger population is generally worse than a smaller one, since, other things equal, more people means more crime.

But even if our goal is to reduce the absolute amount of crime rather than the rate, immigration restrictions are the wrong approach to achieving that objective. Resources devoted to deporting people with a low crime rate can be more profitably devoted to targeting actual criminals, thereby by deterring and otherwise preventing many more crimes. In Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom, I estimate that transferring the tens of billions of dollars currently spent on immigration enforcement to ordinary law enforcement would enable us to put tens of thousands of additional police officers on the streets; social science evidence indicates that can greatly lower crime rates, thereby preventing vastly more crime than enforcement of immigration restrictions does.

Moreover, immigration restrictions - like other laws that create a black market, such as that in alcohol during Prohibition - actually increase violent crime, by creating opportunities or organized criminals. Reducing or eliminating restrictions can reducs that problem, just like the end of Prohibition reduced violent crime associated with Al Capone and other participants in the illegal alcohol industry.

In addition, increased immigration creates vast new wealth, and improves the government's fiscal position (reducing budget deficits). If necessary, some of that extra wealth can be invested in expanding law enforcement budgets.

In sum, if crime is your concern, immigration restrictions are part of the problem, not part of the solution. It would be better to make legal migration easier, and transfer resources from immigration enforcement to ordinary police.

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[Josh Blackman] Today in Supreme Court History: April 27, 1822

4/27/1822: President Ulysses S. Grant's birthday. He would appoint four Justices to the Supreme Court: Chief Justice Waite, Justice Strong, Justice Bradley, and Justice Hunt.

President Grant's appointees

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[Eugene Volokh] Maine Lawyer Tries to Get Federal Government Lawyer Investigated for Litigating Government's Claim Related to Transgender Athletes

[The federal judge rightly rejects the request.]

From WMTW:

A federal judge has denied a motion from a Maine lawyer asking for a special counsel to investigate the attorney representing the federal government in its Title IX lawsuit against the Maine Department Education.

{On April 16, U.S. Attorney General Pam Bondi announced the Department of Justice was suing the Maine DOE for violating Title IX by allowing transgender athletes who were assigned male at birth to compete in girls' sports.}

Randy Creswell … filed a motion in federal court Thursday that accuses U.S. Department of Justice attorney Matthew Donnelly of discriminating against Maine students on the basis of gender identity by continuing to pursue the case.

No, said Judge Stacey Neumann (D. Me.):

ORDER re 9 NOTICE to Appoint Special Counsel to Investigate and Prosecute, as Necessary, Formal Disciplinary Proceedings Against Matthew J. Donnelly, Esq. for Professional Misconduct …. I conclude the appointment of special counsel is not warranted, and no further action on this filing is necessary.

You can read Creswell's motion here, and here's the relevant professional conduct rule:

It is professional misconduct for a lawyer to …

(d) engage in conduct that is prejudicial to the administration of justice;

(g) engage in conduct or communication related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity.

(1) "Discrimination" on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or gender identity as used in this section means conduct or communication that a lawyer knows or reasonably should know manifests an intention: to treat a person as inferior based on one or more of the characteristics listed in this paragraph; to disregard relevant considerations of individual characteristics or merit because of one or more of the listed characteristics; or to cause or attempt to cause interference with the fair administration of justice based on one or more of the listed characteristics….

(4) Declining representation, limiting one's practice to particular clients or types of clients, and advocacy of policy positions or changes in the law are not regulated by Rule 8.4(g)….

The comments to the 2009 version of the rule, before paragraph (g) was added, say:

Legitimate advocacy does not violate paragraph (d). However, by way of example, a lawyer who, in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice….

The comments accompanying paragraph (g) don't expressly say that legitimate advocacy doesn't violate (g). But they do suggest that 8.4(g) is supposed to elaborate on the existing rules: "This amendment, which adds new Rule 8.4(g), is intended to dispel uncertainty as to what conduct is prohibited." The addition of paragraph (g) thus shouldn't be read as purporting to bar legitimate advocacy (i.e., advocacy supported by nonfrivolous legal arguments).

This is also reinforced by (g)(4) stating that "advocacy of policy positions or changes in the law [is] not regulated by Rule 8.4(g)." Creswell argues that the federal government lawyer wasn't arguing for "policy positions or changes in the law," since the federal government's position is that federal law (not just a policy position) already calls (without any change in the law) for limiting women's sports to biological females, and thus excluding transgender athletes. But surely if the rule allows arguing that the law should be changed in a way that discriminates based on race, sex, religion, age, socioeconomic status, gender identity, and so on, the rule must equally allow arguing that the law already calls for such discrimination.

And in any event, I don't think that the Maine courts can simply create rules that forbid advocacy substantively urging what the courts view as discrimination, even if the courts wanted to. Professional conduct rules are intended to set up guidelines about how lawyers can make their arguments, not about what legal positions lawyers are allowed to endorse.

That's especially clear with regard to federal government lawyers making arguments under federal law in federal court, something state courts can't substantively restrain. But I think it should be equally true for private lawyers making state law arguments in state court as well: If Maine courts disagree with legal positions that would treat people differently based on race, sex, religion, age, socioeconomic status, and so on, they can reject those arguments, but they can't sanction lawyers simply for making them.

And that's of course equally true for arguments that transgender athletes shouldn't be allowed in women's sports; for arguments that men generally shouldn't be allowed in women's sports; for arguments in favor of race- or sex-based preferences in admissions or employment; for arguments in favor of various preferences for or against religious institutions or religious observers; various sorts of perfectly legal age discrimination and socioeconomic status discrimination; and more.

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[Josh Blackman] Today in Supreme Court History: April 26, 1995

4/26/1995: U.S. v. Lopez decided.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Electronic monitoring, secret GPS trackers, and a speck in the recesses of interstellar space.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Bound By Oath podcast: In 1974, Congress added the law-enforcement proviso to the Federal Tort Claims Act to ensure that the victims of wrong-door raids by federal officers would have a legal remedy. On this episode, we talk with some folks who had a hand in getting the proviso passed into law, and we talk about the case of Martin v. United States, the wrong-door raid case that the Supreme Court will hear next week.

Protestors at the Vermont statehouse sit in a circle, join arms, sing "social justice" songs, and refuse to leave. Cop applies pressure to one, triggering violent pain, during which she claims she was unable to stand. Three officers carry her out. District court: Qualified immunity. Second Circuit: Well, there's a case saying that if her side of the story is correct the tactic may have been unconstitutional. Dissent: I think the Supreme Court wants us to be more evasive, guys. A man riding his lawn mower was hit by a car and died in Dillon County, S.C. Insurance litigation ensued. Fourth Circuit: "What does it matter? A case but a speck in the recesses of interstellar space and in the four-plus billion years since our solar system's birth. What does it matter, this case deserted by both space and time?" Well, "[t]o be human is to live in the here and now." North Carolina appellate judge loses race for the state Supreme Court by fewer than 800 votes. He challenges the results in state court, arguing that ineligible votes were counted. After procedural hurly-burly that ends up with the case being divided between state and federal court, the state Supreme Court orders some ballots excluded and that other voters be given 30 days to cure deficiencies in theirs. The federal district court grants a partial injunction, allowing the state to recount the ballots, but not certify the results. Fourth Circuit (over a dissent): Don't do anything until we figure out the federal constitutional issues. Houma, La. police officers riddle a local man with nearly 20 bullets in his front yard after he flees from them (maybe while holding a gun?). Louisiana State Police are tasked with investigating the officer-involved shooting, and state troopers promptly get warrants to search the man's car and house (and his grieving wife's cell phone) on the asserted ground that they have probable cause to investigate the man for aggravated assault on a peace officer. Litigation ensues. District court: Um … the man was dead, so it's pretty obvious probable cause didn't support your investigating him for a crime. Fifth Circuit: Who could possibly say? Qualified immunity! Dissent: I mean, we could say, right? After shareholders sue private prison company CoreCivic, the parties enter a protective order, resulting in hundreds of documents being sealed from public scrutiny. The Nashville Banner intervenes to unseal the documents. Eventually, all but a few documents are unsealed. The newspaper appeals. Sixth Circuit: The district court needs to do a much better job explaining which parts of these documents, if any, should remain under seal. U.S. Sentencing Commission issues a policy statement that a non-retroactive change in the law can present an "extraordinary and compelling" reason warranting a sentence reduction if it results in old inmates serving much longer sentences than new inmates who committed the same crimes. Multiple inmates seek compassionate release under the new policy statement. Sixth Circuit (over a dissent): We've already interpreted the compassionate-release statute to provide otherwise, and it would be a separation-of-powers problem for the Sentencing Commission to overrule us. The Speedy Trial Act provides that criminal informations or indictments must be filed within 30 days after the defendant is arrested on the charges. Mexican national: Yes, my criminal information for illegal reentry was filed less than 30 days after my arrest, but it was filed more than 30 days after I was civilly detained by immigration authorities. And the civil and criminal folks were colluding together to circumvent my Speedy Trial Act rights. T'was a ruse! Seventh Circuit: Some courts have said there's a "ruse" doctrine along the lines you suggest, but even if that's a real thing, there were no shenanigans here. Conviction affirmed. Reno, Nev. mayor discovers secret GPS tracker on her car. Police learn it belongs to a PI and tell the mayor. She sues him, and the Nevada Supreme Court has since ordered him to say who paid him to place the tracker. But more importantly for present purposes, he sues the police claiming that his placing of the tracker was perfectly legal (it's since been outlawed) and disclosing his identity violated his First and Fourth Amendment rights. Ninth Circuit (unpublished): It did not. In exchange for pretrial release, San Francisco's Superior Court imposes restrictive electronic and warrantless monitoring of some criminal suspects. And the sheriff's office draws up the rules. Is that OK? District court: Lots of wrong here. PI is awarded. Ninth Circuit: Meh. There's much gray in the world. PI partly vacated. Dissent: "San Francisco's Superior Court abdicated judicial power." It is perhaps a good rule of thumb that an opinion that goes out of its way to make sure readers know a dog's name was "Herkimer" is going to deny qualified immunity to the police officer who shot Herkimer. And so it is in this Tenth Circuit opinion. Allegation: Colorado middle-school teacher invites student—who has never questioned her own gender identity—to an after-school art club. Student is surprised to arrive at what is actually a Gender and Sexualities Alliance meeting, where she is told that students who are uncomfortable with their bodies are more likely to be trans and is encouraged to come out as trans, which she does. Although the guest speaker warned students that it might not be safe to tell their parents about the meeting, she does. The parents sue the school district and its board of education, alleging violations of their parental substantive-due-process rights. Tenth Circuit: We're not sure what the scope of parental SDP rights are, but it doesn't matter because this wasn't official district policy. In Alabama, certain sex offenders cannot ever spend the night in the same home as a child even if the offense was years ago, they are reformed, and the child is their own. Eleventh Circuit: This violates the fundamental right to establish a home, as articulated in totally rad cases like Meyer v. Nebraska (1923). Jacksonville, Fla. prohibits erotic dancers under the age of 21, and those over the age of 21 must obtain a license to strip. Your summarist has been rebuked for appealing to readers' prurient sides, so you're on your own in crafting humor regarding this Eleventh Circuit decision concluding there's no First Amendment violation.

New TRO! Last week, IJ client Esperanza Gomez—who owns a small business in San Diego that provides check-cashing, money transfers, and money orders to working-class customers—launched a challenge to a new federal policy requiring money-service businesses in dozens of zip codes along the U.S.-Mexico border to report all cash transactions over $200 to the feds. (Typically, only transactions over $10,000 require such a report.) The paperwork burden is enormous. The privacy concerns are colossal. And a federal judge just said the whole thing might just be illegal. Click here to learn more.

 

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[Eugene Volokh] Apparent AI Hallucinations in Defense Filing in Coomer v. Lindell / My Pillow Election-Related Libel Suit

[UPDATE: Lawyer's response added; post bumped to highlight the update.]

[Post was originally posted April 24, 2025, at 8:14 pm.]

From yesterday's decision by Judge Nina Wang in Coomer v. Lindell (D. Colo.):

As discussed extensively on the record, after confirming with Mr. Kachouroff that he signed the Opposition consistent with his obligations under Rule 11 of the Federal Rules of Civil Procedure, the Court identified nearly thirty defective citations in the Opposition. These defects include but are not limited to misquotes of cited cases; misrepresentations of principles of law associated with cited cases, including discussions of legal principles that simply do not appear within such decisions; misstatements regarding whether case law originated from a binding authority such as the United States Court of Appeals for the Tenth Circuit; misattributions of case law to this District; and most egregiously, citation of cases that do not exist.

Despite having every opportunity to do so, Mr. Kachouroff declined to explain to the Court how the Opposition became replete with such fundamental errors. For example, when confronted with the first misquotation in a parenthetical appearing on page 3 of the Opposition—purportedly drawn from Mata v. City of Farmington, 798 F. Supp. 2d 1215, 1227 (D.N.M. 2011)—Mr. Kachouroff stated to the Court:

Your Honor I may have made a mistake and I may have paraphrased and put quotes by mistake. I wasn't intending to mislead the Court. I don't think the quote is far off from what you read to me.

When asked how a case from the United States District Court for the Eastern District of Kentucky became attributable to the United States District Court for the District of Colorado, Mr. Kachouroff indicated that he "had given the cite checking to another person," later identified as Ms. DeMaster. When asked whether he would be surprised to find out that the citation Perkins v. Fed. Fruit & Produce Co., 945 F.3d 1242, 1251 (10th Cir. 2019) appearing on page 6 of Defendants' Opposition did not exist as an actual case, Mr. Kachouroff indicated that he would be surprised.

{There is a District of Colorado case of Perkins v. Fed. Fruit & Produce Co., 945 F. Supp. 2d 1225 (D. Colo. 2013), appeal dismissed, No. 13-1250 (10th Cir. July 29, 2013), but such case does not stand for the proposition asserted by Defendants, i.e., that a Court of Appeals affirmed "admitting evidence of prior emotional difficulties to challenge damages claims."} Time and time again, when Mr. Kachouroff was asked for an explanation of why citations to legal authorities were inaccurate, he declined to offer any explanation, or suggested that it was a "draft pleading."

Not until this Court asked Mr. Kachouroff directly whether the Opposition was the product of generative artificial intelligence did Mr. Kachouroff admit that he did, in fact, use generative artificial intelligence. After further questioning, Mr. Kachouroff admitted that he failed to cite check the authority in the Opposition after such use before filing it with the Court—despite understanding his obligations under Rule 11 of the Federal Rules of Civil Procedure. Even then, Mr. Kachouroff represented that he personally outlined and wrote a draft of a brief before utilizing generative artificial intelligence. Given the pervasiveness of the errors in the legal authority provided to it, this Court treats this representation with skepticism….

The court ordered defendants' lawyers to explain why they shouldn't be sanctioned, and why they shouldn't be referred for disciplinary proceedings. It added,

Counsel will specifically address, under the oath subject to the penalty of perjury, the circumstances surrounding the preparation of the Opposition to Plaintiff's Motion in Limine, including but not limited to whether Defendants were advised and approved of their counsel's use of generative artificial intelligence ….

No later than May 5, 2025, defense counsel of record SHALL CERTIFY that a copy of this Order has been provided to Defendant Michael Lindell personally ….

One might say Mr. Kachouroff was caught with his pants down, though I think the current problem is worse than the earlier one:

Thanks to my colleague Justin Grimmer for the pointer (to the AI hallucination matter, not the pants one).

UPDATE 4/25/2025 2:34 pm: The lawyer's response to the court order, which basically states that one of the lawyers "had mistakenly filed a draft of our Opposition to Plaintiff's Motion in Limine instead of the final version of the Opposition which we had carefully cite-checked and edited":

On February 25, 2025, counsel for Defendants filed what they believed to be the correct Opposition response (Doc. 283) to Plaintiff's Motion in Limine. Almost two months later, at the conclusion of the April 21 pre-trial conference and without any notice, the discussion unexpectedly turned into an evidentiary hearing focused on the substance of Defendants' Opposition. Defense counsel was caught off-guard with the Court's line of questioning as he 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. Defense Counsel had no advanced indication that the Court appeared to have conclusively assumed that Defense counsel blindly relied on generative artificial intelligence in their filing. Defense counsel respectfully submits that the lack of advance notice left them unprepared to explain the filing at the time. The Court was obviously prepared to conduct its examination well in advance, catching Defense counsel wholly unprepared.

During the April 21 hearing, Defense counsel tried to slow down the Court's examination of case citations in Doc. 283 because it was moving rapidly and Defense counsel was still unaware of the reasoning behind the Court's questioning. Defense counsel asked to return to a particular Westlaw citation and commented that the citation was odd, that this was not the way that counsel formats his cites, and that this document may have been a draft. At other times, counsel told the Court that he needed to check into it since, again, at this time he was still uncertain as to how this error could have occurred. The Court rejected these comments because it seemed to assumed that defense counsel blindly relied on a response produced by AI. The Court insisted on going through every case citation asking, "Would you be surprised … ?" And of course, Defense counsel answered that he was surprised. He could not recall Doc. 283 which had been filed 55 days earlier, let alone the correct legal authorities used to support the various arguments made in Doc. 283.

The Court's order insinuates that it had to confront Defense counsel directly in order to gain an admission that AI was used. Respectfully, this is not accurate. There is nothing wrong with using AI when used properly. At that time, counsel had no reason to believe that an AI-generated or unverified draft had been submitted.

After 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.

D.C.Colo.LCivR 7.1(i) permits this court to strike Doc. 283 and return the response for revision. The correct response is attached as Exhibit A without alteration and does not include a completed certificate of service. If permitted by the Court after consideration of the attached exhibits, we would submit the form of Exhibit A with an errata or corrected title and an updated certificate of service.

A Microsoft Word generated comparison of the changes between the incorrect response (Doc. 283) that was filed and the correct response counsel intended to file is attached as Exhibit B. Also included in Exhibit B is an appendix of changes created on April 21, 2025. Exhibit B shows the numerous and substantive changes to what was the final and correct document.

The mistaken filing occurred under circumstances which were entirely inadvertent. For example, the day prior to the filing of the wrong version, Defendants' counsel worked together to remove troublesome citations and shore up the main argument. See Exhibit C – 2025.02.24 Emails between DeMaster and Kachouroff.

Also included with this response and motion are screen shots of the document properties from the incorrect and correct versions of the Opposition so that the Court can compare the two and see that no changes were made to the intended, correct document after the February 25, 2025 filing date. See Exhibit D – Document Properties Comparison.

Finally, Counsels' declarations detail the circumstances under which the inadvertent filing occurred and why it occurred. See Exhibits E - Decl. Demaster and F – Decl. Kachouroff. Again, the mistaken filing was human error and Doc. 283 was not intended to be filed. There was no lack of diligence on the part of Defense counsel and no intent to mislead this Court whatsoever.

Within hours of the Court's hearing, Defendants' counsel prepared a Motion for Leave to substitute Doc. 283. Pursuant to D.C.Colo.LCivR 7.1(a) and upon returning to his home state, Counsel conferred with opposing counsel by telephone on April 22, 2025, discussed the substance of Defendants' Motion for Leave including the circumstances for the mistaken filing, and apologized to opposing counsel for the inconvenience. Because of the severe nature of the level of sanctions hinted at in the Court's order, Defense counsel sent Plaintiff's counsel, a copy of the motion on April 23, 2025 and defense counsel also texted and left a message for opposing counsel to see whether they would oppose this filing. Plaintiff's counsel stated that they would not take a position on the motion for leave.

While waiting for Plaintiff's counsel's response, the Court issued its rule to show cause (Doc. 308). This motion was modified to include Defense counsel's response to the show cause order. Defense counsel has ensured this error was immediately corrected with sincere apology to this Court and opposing counsel.

We are not asking this Court to rehear any part of Plaintiff's motion in limine but we are seeking leave to file the revised and correct version in lieu of Doc. 283. All arguments made in the corrected version would be bound by statements, arguments, and withdrawals made at the hearing on April 21, 2025. We are also asking the Court, after considering the totality of the circumstances shown in the affidavits, to dismiss the rule to show cause.

Dated: April 25, 2025….

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