After Dominion Voting Systems sued the San Diego-based owners of One America News for libel, OAN founder and CEO Robert Herring Sr. hinted he’d use truth as a defense.
“I figure when we put out the news, our news is always good,” the businessman said of the $1.6. billion case. “So we don’t have to worry about it. Meet ’em in court.”
Herring’s lawyer is singing a different tune now.
On Thursday, Blaine C. Kimrey filed a 42-page response to Dominion’s federal suit. It made no effort to directly rebut Dominion’s allegations that OAN’s election-fraud lies did serious harm to the company’s business and employees.
Instead, Chicago-based Kimrey argued the case should be paused until a similar suit is resolved in a Colorado state court. Or dismissed outright.
At the same time, OAN wants federal Judge Carl J. Nichols to consider moving the case from the District of Columbia to a U.S. District Court in Colorado, where Dominion is based.
“Transferring this case to Colorado would be much more convenient for at least 16
nonparty witnesses and would facilitate subpoenas to, depositions of and testimony from those nonparty witnesses without the need for ancillary enforcement actions,” Thursday’s motion said.
Kimrey, a one-time newspaper journalist, also argues that “relative docket congestion” in the two courts supports a transfer.
“As of June 30, 2021, [the D.C.] Court had 5,946 pending cases and an average of 40 months for a case to reach trial,” he wrote. “By comparison, [the Colorado federal court] has 3,948 pending cases and an average of 32.8 months for a case to reach trial.”
OAN’s lawyers also fear that the state and federal cases could be resolved differently.
“There is a particularly high risk of inconsistent judgments if this case is not transferred because this case and the Coomer Action involve many of the exact same allegedly defamatory statements,” Kimrey writes.
“Thus, [the D.C.] Court and the court in the Coomer Action could reach different conclusions about whether the statements were true or substantially true, whether they were subject to any applicable privilege, and/or whether Defendants acted with actual malice.”
He said such a result would be unjust and inefficient.
Beyond that, OAN’s legal team wants Nichols to at least drop Robert Herring Sr., 80, and his network president son Charles from the case — leaving OAN and Washington-based OAN correspondents Chanel Rion and Christina Bobb to face the music.
The “Coomer Action” involves former Dominion executive Eric Coomer, who sued Donald Trump, a series of allies and several media outlets, including OAN, over “immense” damage to his reputation, privacy, safety and earnings.
“The onslaught of threats Dr. Coomer has experienced and the necessary measures he has been forced to take to protect himself are the direct result of Defendants’ defamatory conduct,” said that defamation suit. “Dr. Coomer has and will continue to experience serious and severe emotional and physical distress as a result.”
Coomer, whose case is being heard by Denver Judge Marie Avery Moses, mainly alleges that OAN and others pushed unfounded tales by far-right activist Joseph Oltmann, who claimed to have overheard a conversation in which Coomer told others Nov. 9, 2020: “Don’t worry about the election, Trump is not gonna win. I made f—-ing sure of that. Hahahaha.”
Coomer was then Dominion’s director of strategy and security.
According to The Colorado Sun, plaintiff Coomer and his opponents have until mid-December to file briefs so Judge Moses can decide whether to dismiss the case or let it go forward.
The Herrings, meanwhile, hope they can be dropped as defendants altogether.
They’re arguing that they don’t belong in a D.C. court, citing lack of “personal jurisdiction.”
“The best Dominion can muster with respect to Charles Herring is that ‘on information and belief, based upon his Twitter and LinkedIn locations, [he] is a resident of the District of Columbia,’” OAN’s lawyers argue.
But they call this claim “flatly inconsistent with the fact that the case caption lists a California address for serving Charles Herring … and allegations related to Robert Herring Sr., are even thinner.”
Dominion, the filing said, doesn’t even try to allege that Robert Herring Sr. was ever present in D.C., “instead contending that minimum contacts were established simply by ‘supervising and exercising editorial control over broadcasting’ allegedly coming from the District of Columbia.”
Kimrey relies on another precedent in his attempt to get the case dismissed.
He says the so-called Colorado River abstention doctrine requires the judge to douse the Dominion case.
“Occasionally, litigants will bring a case in both the federal court system and the state court system,” writes Utah attorney Matthew D. Church. “The reasons for doing so are usually strategic based on the judges and jurisdictions in the federal and state system.”
In such cases, he says, federal courts have found that when simultaneous litigation is duplicative or otherwise inefficient they may stay the action pending the outcome of the state court case.
“Bringing a case in both the state and federal court systems may be a wise course of action for your case,” Church says, “but be prepared to have the federal case stayed if the court deems that such a stay would be in the best interest of judicial economy.”
Two local experts didn’t think much of the Herrings’ strategy.
Point Loma Nazarene University journalism director Dean Nelson said: “This is standard procedure for defendants who know that facts don’t support their case: When the facts are against you, try to do anything but address the facts. That’s what’s happening here. Courts usually see through this tactic.”
Carl Luna, the San Diego Mesa College political science professor, added Friday: “OAN is going the usual DOD — deny, obfuscate and delay. But eventually the case will be heard and OAN will use the First Amendment as their shield.”
Attorneys for both sides didn’t respond to requests for comment Friday morning.
Besides the motion to dismiss, stay or transfer, the OAN lawyers filed about 750 pages of exhibits. Most relate to the Colorado case.
But one attempts to show how Dominion’s “Democracy Suite 5.5-A system” was deemed sketchy by six appointed Texas “examiners.”
(One was Jim Sneeringer, “author of the popular WORDsearch Bible study software.” Another was Ryan Vassar, decried for writing that groups urging people to apply for a mail-in ballot solely because of COVID-19 fears could face “criminal sanction.”)
“Specifically, the examiner reports raise concerns about whether the … system is suitable for its intended purpose; operates efficiently and accurately; and is safe from fraudulent or unauthorized manipulation,” said a January 2020 report by Texas Deputy Secretary of State Jose Esparza.
About a year earlier, however, SLI Compliance came to a different conclusion while working for the U.S. Elections Assistance Commission.
SLI of Wheat Ridge, Colorado, said in a 20-page report on Dominion D-Suite 5.5-A that the system met the required acceptance criteria of the EAC’s Voluntary Voting System Guidelines
“It is SLI’s recommendation based on this testing effort that the EAC grant certification of Dominion D-Suite 5.5-A voting system,” wrote Traci Mapps, SLI’s voting system test laboratory director.
Updated at 11:10 a.m. Nov. 19, 2021