Defendant Rudolph W. Giuliani is taken at his word that he understands these [discovery] obligations. He assured this Court directly that he “understand the obligations” because he has “been doing this for 50 years[.]” Transcript of May 19, 2023 Mot. Hearing (“May 19 Hrg. Tr.”) at 67:21–68:6, ECF No. 75. In this case, however, Giuliani has given only lip service to compliance with his discovery obligations and this Court’s orders by failing to take reasonable steps to preserve or produce his ESI. Instead, Giuliani has submitted declarations with concessions turned slippery on scrutiny and excuses designed to shroud the insufficiency of his discovery compliance. The bottom line is that Giuliani has refused to comply with his discovery obligations and thwarted plaintiffs Ruby Freeman and Wandrea’ ArShaye Moss’s procedural rights to obtain any meaningful discovery in this case...
Facing court orders compelling his discovery compliance and potential default judgment as a sanction for failing to preserve ESI, Giuliani filed two personally executed, but unsworn, “stipulations” admitting, for the purposes of this litigation, liability on the factual elements of plaintiffs’ claims and their entitlement to punitive damages. See Def.’s Resp. Pls.’ Mot. (“Def.’s Mot. Resp.”), “Nolo Contendre [sic]” Stipulation (“Giuliani Stip.”), ECF No. 84-2; “Superseding Nolo Contendre [sic]” Stipulation (“Giuliani Superseding Stip.”), ECF No. 90. Giuliani’s stipulations hold more holes than Swiss cheese, with his latest stipulation expressly reserving “his arguments that the statements complained of are protected and non-actionable opinion for purposes of appeal[,]” Giuliani Superseding Stip. ¶¶ 5-6, which arguments were previously rejected in this Court’s decision denying defendant’s motion to dismiss..."
The downside risk of turning the discovery process into what this Court has previously described as a “murky mess,” May 19 Hrg. Tr. at 105:22, is that Rule 37 provides a remedy: sanctions, including entry of default judgment, against Giuliani. See FED. R. CIV. P. 37(e)(2)(C); 37(b)(2)(a)(vi). Given the willful shirking of his discovery obligations in anticipation of and during this litigation, Giuliani leaves little other choice. For the reasons set out below, the pending motion is granted. 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.
