Wednesday, August 30, 2023

A Noun, A Verb, A Sanction

Another well-earned condemnation of the erstwhile America's Mayor by the United States District Court for the District of Columbia (Judge Howell) in his defamation case

Defendant Rudolph W. Giuliani is taken at his word that he understands these obligations. He assured this Court directly that he “understand[s] 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.

Rather than simply play by the rules designed to promote a discovery process necessary to reach a fair decision on the merits of plaintiffs’ claims, Giuliani has bemoaned plaintiffs’ efforts to secure his compliance as “punishment by process.” Id. at 75:12. Donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery in a straight-forward defamation case, with the concomitant necessity of repeated court intervention.

Default was in his stars

The seriousness of Giuliani’s multiple discovery violations over the course of this litigation, coupled with his concession that he is “desirous to avoid unnecessary expenses in litigating what he believes to be unnecessary disputes” and that “liability in this case . . . should be treated as though there is default liability,” Giuliani Superseding Stip. at 1 & ¶ 6, make plain that Giuliani has no interest in participating in discovery and that an entry of default is warranted. See Sec. & Exch. Comm’n v. Hollywood Trenz, Inc., 202 F.R.D. 3, 7 (D.D.C. 2001) (“In those cases where a court orders a dismissal or enters a default judgment, the party typically has engaged in a pattern of disobedience or noncompliance with court orders[.]”); see also WMATC, 776 F.3d at 4 (holding that default judgment is appropriate if the litigant’s misconduct is accompanied by “willfulness, bad faith, or fault”) (citation omitted). Accordingly, default judgment is the only sanction against Giuliani

Additional sanction

With respect to Giuliani’s obligations to reimburse plaintiffs’ attorneys’ fees and costs, Giuliani is directed: (1) to reimburse such fees and costs associated with plaintiffs’ successful first motion to compel discovery, in the amount totaling $89,172.50, with interest on that amount from July 25, 2023; (2) to reimburse such attorneys’ fees and costs associated with plaintiffs’ motion for sanctions, pursuant to Rule 37(e); and (3) to ensure the Giuliani Businesses reimburse such fees and costs associated with plaintiffs’ successful motion to compel discovery from the Businesses, in the amount totaling $43,684. Should the Giuliani Businesses fail to timely reimburse plaintiffs the $43,684, Giuliani will bear that cost as a sanction under Rule 37(b)(2)(A), with interest on that amount to accrue from September 20, 2023.

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