Akiva Cohen Profile picture
Jan 26 46 tweets 15 min read
OK, #LitigationDisasterTourists, let's talk about Mike Lindell.

When we last left our pillow friend (apologies, #WoT fans, I had to), he was being sued for defamation by Dominion and appealing the District Court's denial of his motion to dismiss that lawsuit
A motion to dismiss, as most of you know, is basically a defendant saying to the Court "look, judge, even if I did everything their complaint plausibly says I did they wouldn't win their case, so just dismiss it now"

Until that got dealt with, he didn't have to file an answer
Under the Federal Rules, which govern Dominion's lawsuits because they're in federal court, parties can't start taking discovery until they've had what's known as a Rule 26(f) conference to discuss a joint discovery plan.
In that conference, the parties will discuss things like what the discovery schedule will be, how many depositions each side will get to take, how the parties will treat electronic discovery, etc. etc. Sometimes those discussions involve a lot of back & forth
For the most part, these conferences are collegial and cooperative. Yes, lawyers are adversaries, and there'll be things we disagree on. But a good discovery plan helps everyone - why have your client pay crazy amounts of money to argue about unnecessary things? Also ...
Judges HAAAAAAATE having to deal with discovery disputes, and you really don't want to be the one staking out an unreasonable position at the outset of a case - the judge will come down on you hard and you burn your credibility for no good reason
So usually if the parties have disagreements, its going to be within a range of "things that reasonable people can understandably take different positions on and defend to a neutral arbiter"
Anyway, after the conferences the parties then file a Rule 26(f) report detailing what they agreed on and where the parties disagree, and the Court then sets a Rule 16 conference to discuss the schedule with the parties, resolve any disputes, and issue the scheduling order
With that background in mind, here are some words I never thought I'd say: For fun, let's review the Rule 26(f) report that some of the parties in the Dominion lawsuits filed on Monday
As you can see, this is a joint report, which is how this is supposed to be filed. Judges DO NOT WANT each party filing its own document; if there are disputes to resolve, we set those out in the body of a joint report ("Plaintiffs say [insert position], Defendants [argument]")
Mike Lindell, intrepid trailblazer of litigation stupidity that he is, declined to join the Joint Report.

It's really hard to overemphasize what a batshit insane decision this is. There is literally zero potential strategic advantage here. It's lunacy
Like, look at that list of defendants. Even litigation disaster superstars Rudy Giuliani and Sidney Powell (who, to remind you, is represented by 2021's Disaster Artist of the year, Howard Klownhandler) knew to join the joint report. Not PillowMike, though
So - and apologies, because the mediation is starting soon so we'll likely have a break before this wraps up - let's dig into this report to see what the hell he was "thinking"
There's a lot here, so let's unpack, timeline form:

8/11/21: Motions to dismiss (filed by all defendants) are denied
11/15/21: Court says "y'all need to talk about a single schedule for discovery in all these overlapping cases"
Sometime between 11/15/21 and 1/5/22: The parties meet and discuss the schedule, and someone circulates a draft report covering ALL the cases/parties
1/5/22: Lindell's team says "look, we're appealing the denial of our motion to dismiss, we need a separate report"

Side note:
Denials of a motion to dismiss are not appealable orders in Federal court (they are in NY state, FWIW). You can only appeal from a final order on the merits (or an order that the trial judge specifically says "you can appeal this now")
And so on January 20 this year, the DC Circuit unceremoniously DJ-Jazzy-Jeffed Lindell's appeal out the door lawandcrime.com/2020-election/…
Anywho, back to THIS version of Lindellian procedural nutbaggery, when Lindell said "I get a special, separate report" the plaintiffs respond "no, my dude, look at the rules. Look at the ORDER. We need one report"

That went over about as well as one would expect
I mean, did anyone really think "but the rules say you can't do that" was going to hold Mike Fucking Lindell?
And guys, all of this is crazy but so far it's garden variety crazy. Which is to say "stupid but not particularly notable". So they're going to file two separate reports. The judge will be a little pissed, it'll be a self-inflicted wound for Lindell, but a blip on the radar. OK.
Holy forking shirtballs this is ... I have no words
One last unpacking before I have to run into the mediation:

Lindell thinks he's discovered "one neat trick" for avoiding discovery: just say that you never did a Rule 26(f) conference and that whatever discussions you had were something other than that conference
OK. Mediator is in with the other side for a while and my team is all doing other things until it's our turn again - have I mentioned my unironic love for Zoom mediation - so let's continue
The extent of Mike Lindell's SCOTUS fetish is really hard to describe
Like ... you appealed a non-appealable order. The appeal was dismissed. And you're planning to file a cert petition in hopes that one of the few cases SCOTUS takes up each year will be "can you appeal from denial of a motion to dismiss"?
Dominion bouncing the rubble here (appropriately so): Lindell's position is fucking nuts *even in the universe where the dismissal order was appealable.* If you can appeal it as a "collateral order" then you still have to do discovery while the appeal is pending, Mike
Like, Lindell's clownshoes attorneys seem to legitimately believe that if they file a "meet and confer report" but don't use the magic words "26(f)" or "16" that will mean they don't have to do discovery. I ... what?
Like, did they never watch Hey Arnold!, which I'm reliably informed is the source of this wisdom?
Gonna disagree with my friend Dan here, because "don't do the thing the Federal Rules require you to do" is ABSOLUTELY a "fire the client" moment
There is one law license. There are many clients. You want me to do something unethical or frivolous and I will show you the door. No matter how much I love you as a person or a client, the answer is no and you'll need another lawyer
Anyway, the rest of this is probably fairly standard scheduling order stuff (will read through it just in case, so stand by). But one last thing to note on Lindell. See this subject heading?
There's no reason that shouldn't have just been a "background" section. Except Rudy and Sidney probably insisted that it be listed as "Plaintiff's position" so they wouldn't get angry calls from Lindell for endorsing it
Sure Rudy, Sidney, that's definitely going to happen. But also, this rule isn't talking about summary judgment motions. The question is whether anyone thinks that discovery should wait until after a ruling on a dispositive motion. Summary judgment happens AFTER discovery
This is actually really unusual and also really fucking stupid by Rudy and Sidney (and, if intended to provoke that, smart by Dominion's lawyers). Typically, this section would just say "There is no possibility of settlement" or "this case may settle after discovery". Instead...
Dominion wrote a whole paragraph about how terrible Rudy and Sidney are.

They shouldn't have taken the bait and should just have said "we believe Plaintiff will be more amenable to settlement after discovery"

They chose a different path
I'm not sure how much of a difference it'll make given any other post-litigation statements, but putting "we have nothing to feel bad about at all" in a filing is a CHOICE y'all. One that basically forecloses any "we believed it at the time but no longer" defense.
Again, not that they were going there anyway. But why shot doors before you have to?
Also hahahahaha are you kidding me?
Commitment to the bit level

A "Coming Soon" trailer!
This is an interesting argument, given that the cases were filed months earlier, meaning Rudy already had a duty to preserve documents. I would not want to be on his side of this issue unless the FBI specifically refused to let him make a backup
And that's the end of the interesting part of this filing.

Stay tuned, discussion of the antivax nonsense coming later today

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More from @AkivaMCohen

Jan 28
OK, fine, fine, #LitigationDisasterTourists, I did promise you a rundown on that antivax lolsuit.
So, today's episode of litigation nutbaggery is brought to you by "Children's Health Defense" - the RFK Jr. group who brought you such antivax hits as "VAXXED (2016)" and "VAXXED II (2019)". These aren't just covid vaccine mandate fighters. They are general purpose antivaxxers
But CHD isn't the only plaintiff here, and the caption tells the story - they wanted to be in the Western District of Texas, so they found a local plaintiff or two to anchor the case there Image
Read 60 tweets
Jan 23
Hey, #LitigationDisasterTourists, it's worth spending some time thinking about how the lawyers for the employees should be approaching this upcoming hearing.

The easy path for an attorney faced with this situation is to focus on how wrong the Judge and hospital are on the law
And absent some information we don't know, they ARE completely wrong here. These are at-will employees. The hospital system can't keep them if they don't want to be there. And you have to say so, forcefully.

But somehow, the judge already rejected that argument. So ...
Were I representing these employees, I'd go a different route. I'd have each employee sign an affidavit declaring that given that their employer just went to court to hold them hostage, they will NEVER, under any circumstances, agree to continue working there.
Read 7 tweets
Jan 10
Listening to Trump v. Thompson, and trump's lawyer is now arguing that Trump has a *duty* as president to try to pressure Raffensberger into reversing Georgia's election
Sorry, Thompson v Trump
"is there anything a president could say while President that would subject him to a civil suit in your view?"

"I can't think of anything"

Don't think this will fly
Read 10 tweets
Jan 9
Holy shit this Apothio litigation funding scam @KyleWRoche is running - and yes, Kyle, it IS a scam, that's what you call it when you take advantage of unsophisticated people who don't know any better - just keeps getting worse and worse the more I look at it.

See this?
There is no legitimate litigation funder in the world who will fund on these terms.


Funders get paid first. That's how litigation funding works. Their initial investment is first money out. Then their litigation return. THEN the lawyers get paid.
In Kyle's version, the rubes who invest are not first money out.

Not even their initial capital outlay.

They come out AFTER the lawyers and AFTER unfunded litigation expenses.
Read 17 tweets
Dec 27, 2021
Weird, because the anti-Jewish riots and massacres in the early 20th century and the insistence on preventing Jewish immigration, including during the holocaust, seems to say otherwise.

But maybe this is a new development. If so, a shame it came too late
Amer: We never had a problem with you returning here.

Constant Palestinian rhetoric: "Go back to Europe, colonizer!"
Amer: The problem wasn't your return

Read 4 tweets
Dec 26, 2021
Hey, #LitigationDisasterTourists, let's talk about this defamation suit for a minute. Moss and Freeman were the GA election workers on Rudy's CCTV video with the "suitcases" that were "under the table". They're now suing OAN, its owners, and Rudy for defamation
This is a lawsuit that will need to clear the "actual malice" bar. They were election workers performing a government function (counting ballots); commentary on that type of thing needs freedom to be vigorous. So defamation liability can only exist if they can prove1 of 2 things:
1) OAN & Rudy actually knew that the things they were broadcasting about Freeman and Moss were false.

2) OAN & Rudy didn't know for certain they were false but subjectively had serious doubts about whether it was false.
Read 18 tweets

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