Coomer v. Make Your Life Epic, LLC.
No. 24-1390. 6/18/2025. D.Colo. Per Curiam. Nonparty Subpoena for Deposition—Failure to Comply With Subpoena—Contempt Order—Jurisdiction Over Interlocutory Appeal—Waiver of Appellate Arguments.
June 18, 2025
Coomer was formerly the director of product strategy and safety at Dominion Voting Systems, Inc., an electronic voting systems company. Starting in November 2020, through his podcast and other means, Oltmann accused Coomer of fraudulently using his director position to rig the 2020 presidential election in favor of President Biden over President Trump. Oltmann identified Coomer by name and position and described several of Coomer’s Facebook posts. Oltmann claimed to have infiltrated an “antifa” pre-election conference call during which Coomer made alleged election-rigging comments. Coomer allegedly suffered death threats and other harms because of Oltmann’s actions, and he has filed several defamation lawsuits based on these allegations. Oltmann is not a party to this lawsuit, but he was properly served with a subpoena as a nonparty to appear and testify at a deposition. Oltmann appeared with counsel for his deposition at the Denver federal courthouse but refused to answer questions about the source who enabled him to join the purported antifa call or about how he accessed Coomer’s private Facebook account. All counsel met with the magistrate judge in her chambers to discuss Coomer’s refusal to answer questions. Shortly thereafter, Oltmann left the courthouse without being released from the subpoena or court authorization. Oltmann then broadcast an online podcast from his home during which he bragged about leaving the deposition and made disparaging comments about the presiding magistrate judge. After a hearing and briefing, the district court held Oltmann in civil contempt of court, levied a $1,000 per day fine against Oltmann until he complied with court orders, and ordered that he pay attorney fees and costs. After the contempt order was entered, Coomer moved for attorney fees and costs, and then an order to show cause why Oltmann had failed to comply with the court’s order imposing sanctions. Oltmann filed a response to this motion and the district court set an evidentiary hearing, but before the hearing could be held, Oltmann filed a notice of appeal. The district court stayed enforcement of the contempt order pending resolution of this appeal.
On interlocutory appeal, the Tenth Circuit first determined that it had jurisdiction over this appeal because Oltmann established the finality of a contempt order by showing that the district court made a contempt finding and imposed a specific, unavoidable sanction, notwithstanding that the attorney fees and costs award has not yet been reduced to a specific dollar figure.
On the merits, Oltmann argued that he properly invoked the newsperson’s privilege, and the burden was improperly shifted to him to re-raise the privilege when he objected to the magistrate judge’s contempt findings and recommendations. Here, while Oltmann timely objected to the magistrate judge’s recommendations, he did not mention the newsperson’s privilege or object to any certified facts or legal analysis that would have alerted the district court that invocation of the privilege absolved him of being held in contempt of court. Accordingly, Oltmann has waived appellate review of this argument.
Oltmann also argued that the district court denied him due process by not holding a hearing before the entry of the contempt order. However, in his opening brief, Oltmann did not make specific arguments about the district court’s findings or legal analysis or address the sanctions awarded against him for being held in contempt. Further, this argument ignores that there was a contempt hearing before the magistrate judge where Oltmann participated through counsel, and he did not subsequently raise significant objections to the magistrate judge’s findings and recommendation or request a second hearing before the district court, so no material facts are in dispute. Accordingly, Oltmann waived appellate review as to the merits of the contempt order.
After this appeal was docketed and Oltmann filed his opening brief, Coomer sought the following sanctions against Oltmann and his counsel: dismissal of this appeal as frivolous, fees and costs incurred on appeal, an order that the $1,000 per day sanction should not have been stayed and has run since the day the contempt order was filed, and consideration to initiate disciplinary proceedings against Oltmann’s counsel. The Tenth Circuit ordered that Oltmann pay Coomer’s reasonable expenses, including reasonable attorney fees and costs associated with this appeal. And though the Tenth Circuit found that a Fed. R. App. P. 45.6 violation occurred, it declined to initiate or order any disciplinary proceedings against Oltmann’s appellate counsel.
The contempt order was affirmed and the case was remanded for further proceedings.