Giuliani & How Refusing Discovery Can Create Liability
When you file a lawsuit, each side enters into a discovery process where each side has rights to request documents, present questions called "Interrogatories," depose witnesses, and conduct other sorts of discovery of evidence tailored to the claims and defenses at hand. Fishing expeditions, i.e. glancing far afield, can be objected to. The process is interactive. This said, if one side refuses to provide discovery, often repeatedly, that side risks being sanctioned by the Court.
Discovery sanctions are not that common. Most often it might be an award of attorney fees incurred to prosecute the discovery obligation and Court Order to produce the discovery by a set date. Other times, a sanction might be that a Court assumes the withheld evidence as existing and true. These sanctions usually occur after one side has been given a chance to provide the discovery, ordered to do so, and lacks a good reason for dragging out this process.
Here in Freeman et al v. Giuliani, Civil Action No. 21-3354, Mem. Op., Doc. 94 (D. D.C., Aug. 30, 2023), Defendant Giuliani repeatedly refused to produce discovery, was ordered to do so and granted more time to do so, still refused to do so, and was sanctioned with default: He's found liable to the filers of the lawsuit. Thus, there is no need to prove the case, except for the damages involved. This is what has happened on August 30 this year to former mayor and dubious legal advisor, Rudy Giuliani, in one of the many cases stemming from claims of a stolen 2020 presidential election in Georgia.
In Freeman et al v. Giuliani, the Court sanctioned Defendant Giuliani for repeated refusal to turn over financial and communication documents in a defamation case brought against him, which means for violating discovery rules with willful intent.
The lawsuit of Freeman et al v. Giuliani has been launched by two Georgia election workers who were targeted by Mr. Giuliani and likely others in the still unproven claim that 2020 presidential election in Georgia was stolen in favor of President Biden. This article is not going to dive into the details of what Mr. Giuliani said or did not say, in part because he has been declared to have defamed them by way of default due to discovery sanction.
In the process of discovery in Maryland in state and federal court, there is a set of procedures, including objections, seeking protective orders from discovery, and motions to compel discovery, all of which are meant to address disputes over what must be turned over and disclosed, what can be shielded and ignored, and when and so on. It is rare for courts of law to sanction a party over good-faith disputes or due to using the dispute process alone.
However as the Judge here notes, Defendant Giuliani refused to turn over numerous financial and communication documents even after motions to compel them were filed, Orders to produce them were granted, and there had been two discovery hearings, extensions of time provided to produce the discovery, and discovery remained unproduced. Mem. Op., supra, at 1-2. As the Court sums up, "the result of these efforts to obtain discovery from Giuliani, aside from his initial production of 193 documents, is largely a single page of communications, blobs of indecipherable data, a sliver of the financial documents required to be produced, and a declaration and two stipulations from Giuliani, who indicates in the latter stipulations his preference to concede plaintiffs’ claims rather than produce discovery in this case."
The context of the Court's finding that Mr. Giuliani refused to produce discovery is the multiple civil and even criminal legal investigations and lawsuits that he faces over the 2020 stolen presidential election claims advanced by him. In other words, he has a reason to shield documents in this case beyond this lawsuit.
Overall if one is involved in a court process, one cannot stiff-arm the legal process without long-term consequence.
The Judge's 50-plus-page detailed opinion will be left mostly unsummarized. The detail is surely meant to be persuasive on appeal. This said, because liability is found by default, Defendant Giuliani is found liable for matters that might have been harder to prove than defamation alone, such as infliction of emotional distress (which often requires "severe" distress be proven) as well as punitive damages (which often requires malicious intent).
The Court found: "Default judgment will be entered against Giuliani as a discovery sanction pursuant to Rules 37(e)(2)(C) and 37(b)(2)(a)(vi), holding him civilly liable on plaintiffs’ defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damage claims, and Giuliani is directed to reimburse plaintiffs for attorneys’ fees and costs associated with their instant motion." Mem. Op. at 5.
So, by refusing to disclose discovery after specific Court Orders, the Defendant here is going to be subject to heavy monetary damages.
In review of the allegations involved (see Freeman et al v. Giuliani, Civil Action No. 21-3354, Mem. Op. (D. D.C., Oct. 22, 2022)), these two election workers suffered life-altering harassment at the hands of people who listened to Defendant Giuliani on his pod-casting and elsewhere accuse them of election-stealing. So in the context of default liability, where Defendant Giuliani has been found by default to have caused them severe emotional distress, the emotional damages alone likely shall be large because the impact appears to have been life-altering - in addition to actual damages, punitive damages, legal fees and expenses, and other applicable damage categories, under all three of these claims of defamation, intentional infliction of emotional distress, and civil conspiracy.
Likewise by being liable by default, he's also waived potential defenses that he raised earlier, such as these election workers were limited public figures, which increases the burden of proof in the proceeding. See id.
While this is an extreme case of simply refusing to provide discovery over several months and Court Orders to do so, often discovery can be handled to minimize invasion of privacy and other over reaching, through skilled legal counsel.
If involved in a lawsuit, legal advice is advisable.
Gregg H. Mosson, Esq.
Mosson Law, LLC
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