Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023). This high-profile case may present interesting ESI and spoliation issues and it is worth watching.
Ms. Tillman reports that plaintiffs are seeking a default judgment. Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half a century of experience and therefore is intimately familiar with his obligation to make reasonable efforts to preserve electronic discovery…. Despite this, Defendant Giuliani has now effectively conceded that he has not taken even the most basic steps to preserve evidence that might be relevant to this litigation.” Id.
Ms. Tillman wrote that: “According to the latest sanctions request by the plaintiffs, while Giuliani turned off an ‘auto-delete’ function, he failed to show he took ‘reasonable steps’ to preserve information in his electronic devices and email, social media, and other messaging accounts — including some he said had been ‘wiped’ [by the government] or that he no longer could access.”
Defendant responded that: “The requests by [plaintiffs’] lawyers were deliberately overly burdensome, and sought information well beyond the scope of this case — including divorce records — in an effort to harass, intimidate and embarrass Mayor Rudy Giuliani…. It’s part of a larger effort to smear and silence Mayor Giuliani for daring to ask questions, and for challenging the accepted narrative.” Id.
Generally, those types of discovery issues must be raised in a timely objection to the discovery requests or a Fed.R.Civ.P. 26(c), motion for a protective order.
For example, Fed.R.Civ.P 34(b)(2) states that the party to whom a request for production is directed “must respond in writing within 30 days….” The Rule states that: “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.”
Boilerplate responses are not sufficient. Further: “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”
The Bloomberg article does not state whether this was done, and I don’t imply that it was or was not.[1]
In a prior article, Giuliani Records Row in Election Suit a ‘Murky Mess,’ Judge Says (bloomberglaw.com)(May 19, 2023), Ms. Tillman reported that:
During a nearly three-hour hearing Friday in Washington, US District Judge Beryl Howell probed claims by Giuliani and his attorney that they made good faith efforts to follow legal rules and search his electronic devices, email accounts, messaging apps and social media platforms.
Near the end, [Judge Howell] described the case as a “murky mess.”
Zoe Tillman, Giuliani Records Row in Election Suit a ‘Murky Mess,’ Judge Says (bloomberglaw.com)(May 19, 2023).(emphasis added)
Ms. Tillman reported, for example, that: “Giuliani had said, for instance, that he mostly used email to communicate about issues relevant to [plaintiffs] Freeman and Moss, but [plaintiffs’ attorney] Governski said that they’d received texts from one witness involving Giuliani that they hadn’t received from him.” Id.[2]
The earlier Bloomberg article states that:
[Judge] Howell ordered Giuliani to provide a detailed accounting of his search for information as well as financial records to prove his claim that he can’t afford to hire professionals to perform searches or pay other costs associated with accessing all potential sources of documents.
This points to two issues. First, there is a vanishing privilege in discovery-about-discovery, and, second, consideration of a party’s resources may be important in defining the scope of discovery.
It has long been established that: “The steps taken by a client to fulfill the duty to preserve information, even if taken in response to privileged communications, have been held to be discoverable, although related attorney communications have not been routinely discoverable. Where there is a preliminary showing of a breach of the duty to preserve information, at least some attorney-client implementation communications have not been protected by courts faced with the issue.” The Honorable Paul W. Grimm, Michael D. Berman, et. al., “Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U. Balt. L. Rev. 413, 415–16 (2008). In short:
Certain facts–such as what steps a litigant took, or failed to take, to preserve material–should be deemed routinely discoverable. Other facts, such as the contents of a litigation hold letter, and attorney-client implementation discussions, should require a greater showing to support disclosure. Actual legal advice, if disclosable at all, should be discoverable only upon a more compelling showing and, perhaps, after in camera review. Although, where there is evidence of a breach of the duty to preserve, there are multiple bases for seeking discovery of some attorney-client preservation communications, the least problematic approach is to assert that implementation communications are unprivileged, compelled exchanges that are only conditionally relevant.
Id. at 455; see Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)(satellite discovery in recent District of Maryland decision); Are Litigation Hold Notices Discoverable?; and, When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective.
A litigant’s ability to pay the costs of discovery is a relevant factor in determining the scope of discovery. Fed.R.Civ.P. 26(b)(1) states in part that: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering … the parties’ resources….”
If the defendant in this case is able to prove lack of resources, that would be a consideration, if timely and properly raised.
It is well established that [a]ll things are presumed against the spoliator”;[3] however, it is not established at this point – based on the media reports – that there was spoliation.[4]
Other reports include Alison Durkee, Giuliani Should Face ‘Severe Sanctions’ For ‘Misconduct’ In 2020 Defamation Case, Georgia Election Workers Say (forbes.com)(“ Giuliani had already been ordered to pay attorneys fees for his failure to produce evidence in the case—which the election workers have said totals $89,172.50—but the new motion asks the court to impose additional punishments against him.”); Andrew Goudsward, Georgia poll workers ask judge to sanction Giuliani in defamation case | Reuters(“Attorneys for both sides said last week that they were close to a settlement that would have resolved large parts of the case. Lawyers for the election workers said in a court filing that those efforts collapsed after Giuliani did not agree.”); Rachel Schilke, Georgia election workers ask for ‘default judgment’ ruling in Rudy Giuliani defamation case | Washington Examiner; Marisa Sarnoff, Shaye Moss, Ruby Freeman seek default in Giuliani case (lawandcrime.com)(“Freeman and Moss learned [from a third party] of a text exchange between Boris Epshteyn, an advisor to the 2020 Trump campaign, and Giuliani about alleged examples of voter fraud…. This exchange — which is relevant to the plaintiffs’ defamation claim — was never produced by Giuliani, nor was it listed on a privilege log, the plaintiffs’ motion says.”); Gabriella Ferrigine, Georgia election workers who faced death threats ask judge to hit Giuliani with “severe” sanctions (yahoo.com)(“ Now, amid the legal battle, Freeman and Moss have alleged that Giuliani ignored court orders mandating him to share his correspondence with Epshteyn….”); and, Georgia election workers say Giuliani failed to turn over key evidence in defamation suit – POLITICO (“In the meantime, Freeman and Moss say other witnesses have produced missing information that Giuliani should have disclosed. Some came from the files of the Jan. 6 select committee, which showed Giuliani taking a role in approving statements and ads that referenced the Georgia video.”).
Given this interest, it is safe to predict that any decision on the spoliation motion will be significant.
[1] Under Fed.R.Civ.P. 37(a)(4): “For purposes of this subdivision (a), an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” The Bloomberg article does not indicate whether this was an issue.
[2] It is good practice to compare what was produced by a party with what was obtained elsewhere. See Missing Text Messages Shown By Third-Party Production & Responsive Texts.
[3] Michael D. Berman, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts,” 45 U. Balt. L.F. 129 (2015)(citation omitted).
[4] The decision referenced by Ms. Tillman is not available on Westlaw. A prior decision was Freeman v. Giuliani, 2022 WL 16551323, at *1 (D.D.C. Oct. 31, 2022).
