King v. Whitmer CIVIL 20-13134 (E.D. Mich. Aug. 25, 2021) Clauses where the factual contentions asserted to support those claims lack evidentiary support. The Court spent significant time during the July 12 hearing inquiring about the various reports and affidavits Plaintiffs attached to their pleadings not necessarily because Plaintiffs' counsel may have filed this lawsuit in bad faith, and not necessarily because the affiants may have submitted their affidavits in bad faith. Rather, the Court did so because-as discussed below-no reasonable attorney would accept the assertions in those reports and affidavits as fact or as support for factual allegations in a pleading when based on such speculation and conjecture. And no reasonable attorney would repeat them as fact or as support for a factual allegation without conducting the due diligence inquiry required under Rule 11(b). 45 See Fed.R.Civ.P. 11 Advisory Committee Notes (1993 Amendment) (noting that Rule 11's objective standard is “intended to eliminate any ‘empty-head pure-heart' justification for patently frivolous arguments”); Tahfs, 316 F.3d at 594 (“A good faith belief in the merits of a case is insufficient to avoid sanctions.”). To be clear, as to Rule 11(b)(3), the Court is not concerned with whether counsel's conduct was done in bad faith.46 The Court is concerned only with what the reports and affidavits say and reveal on their face, and what Plaintiffs' counsel should (or should not) have done before presenting them in light of what is revealed on their face.47 46 This does not mean, however, that violating Rule 11(b)(3) by presenting pleadings for which the factual contentions lacked evidentiary support cannot be done in bad faith or for an improper purpose. If it is, this would of course constitute a violation of Rule 11(b)(1). See infra, Section IV, Subsection B, Part 3-“Whether Plaintiffs' counsel acted with an improper purpose in violation of Rule 11(b)(1).” 47 Plaintiffs' attorneys further contend that they did more than was required by attaching this “evidence” to their pleadings. (ECF No. 157 at Pg ID 5534.) True, Plaintiffs were not required to attach evidence to support their factual allegations; but, they did. Therefore, they had an obligation to scrutinize the contents and doing so would have revealed that key factual assertions made in their pleading lacked evidentiary support. No evidentiary hearing is needed Plaintiffs' attorneys contend that “[t]he proper method for evaluating affidavits is an evidentiary hearing” during which a court tests the veracity of the affiants and, without one, the Court cannot sanction counsel. (See, e.g., ECF No. 161 at Pg ID 5815, 5816 n.10; ECF No. 157 at Pg ID 5491-93.) However, the affiants' credibility and the truth or falsity of their affidavits have no bearing on what the Court finds sanctionable under Rule 11(b)(2) and (3). Instead, what is sanctionable under Rule 11(b)(2) as discussed above is, among other things, (i) asserting that acts or events violated Michigan election law, when the acts and events (even if they occurred) did not and (ii) failing to inquire into the requirements of Michigan election law. What is sanctionable under Rule 11(b)(3) as discussed below is (i) presenting factual assertions lacking evidentiary support; (ii) presenting facts taken from affidavits containing speculation and conjecture because, at no stage during the litigation process, would such “evidence” count as evidentiary support for a factual allegation; (iii) failing to ask questions of affiants who submitted affidavits that were central to the factual allegations that the affidavits supported; (iv) failing to inquire (sufficiently, if at all) into recycled affidavits first used by different attorneys in earlier electionchallenge lawsuits; and (v) failing to inquire into information readily discernible as false. 28