Default Judgment Sanctions for Giuliani

Default Judgment Sanctions for Giuliani in Defamation Case: eDiscovery Case Law

In Freeman v. Giuliani, No. 21-3354 (BAH) (D.D.C. August 30, 2023), District of Columbia District Judge Beryl A. Howell issued default judgment sanctions for Giuliani, granting the plaintiffs’ motion for sanctions for failure to preserve ESI, directed Giuliani to produce records and information to prepare for a trial on damages, and ordered Giuliani and his businesses to reimburse plaintiffs’ fees and costs totaling over $132,856.50.

Case Background

In this case involving claims of defamation, intentional infliction of emotional distress, and civil conspiracy over statements made by the defendant regarding the 2020 US Presidential election, a Scheduling Order was entered adopting the parties’ proposal that initial discovery disclosures be exchanged by May 18, 2022, and that all fact discovery close by November 22, 2022. The parties subsequently filed a joint request for additional time to complete discovery until May 22, 2023.


After plaintiffs propounded their first set of discovery requests, in May 2022, Giuliani, through his counsel, advised plaintiffs that the FBI had seized his electronic devices in April 2021. Though his devices were returned no later than August 19, 2022, Giuliani claimed he “lost access to some of these accounts after the seizure”, and he and his counsel would “need to assess the status” of those accounts; however, Giuliani’s counsel pointed to a dataset held by an eDiscovery vendor, with assurances that this dataset contained “all the data” collected by the FBI from Giuliani’s seized devices. Between July 12 and November 1, 2022, Giuliani produced to plaintiffs a total of 193 documents, all of which were sourced to that dataset, from which he subsequently claimed he couldn’t conduct additional searches because those “documents have now been archived[,]” because he was over $320K behind on payments.

When the plaintiffs requested confirmation from Giuliani’s counsel that Giuliani had taken reasonable steps to preserve his electronic evidence, Giuliani’s counsel replied, “I am not aware of his preservation efforts.” During his deposition on March 1, 2023, Giuliani testified that he “[t]ypically . . . had two phones” and has “a bunch of inoperative phones[,]” though, “[r]ight now,” he “really [has] officially one phone[,]” he had “a Gmail account and then . . . several offshoot accounts, like,” and a “ProtonMail account[,]” and he sent messages on “Twitter . . . Signal, Telegram, [and] Whatsapp” “around the time of the 2020 election”. He also described his search effort as taking “a quick look” for responsive material on messaging platforms and some of his devices and claimed that his devices seized by the FBI in April 2021 were found to be “wiped out” when returned to him.

Plaintiffs also never received any discovery from Giuliani’s businesses, leading to a motion to compel, which Giuliani did not oppose, leading to a judgment to pay plaintiffs’ attorneys’ fees of $43,684.

Plaintiffs sought default judgment sanctions for Giuliani after two discovery hearings, two motions to compel production filed by plaintiffs, and multiple court orders requiring Giuliani to explain his discovery conduct and comply with applicable procedural rules. In response, Giuliani submitted a personally executed and unsworn stipulation that purports to concede all factual elements of plaintiffs’ claims “for the purposes of this litigation.”

Judge’s Ruling

Judge Howell stated: “parties must…take reasonable efforts to preserve potentially relevant evidence, including…ESI…, when litigation is ‘reasonably foreseeable.’… 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[.]’…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.”

Judge Howell also stated: “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… 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[,]’…which arguments were previously rejected in this Court’s decision denying defendant’s motion to dismiss”.

So, Judge Howell issued default judgment sanctions for Giuliani under both FRCP 37(e)(2)(C) and 37(b)(2)(A)(vi), directed Giuliani “and his eponymous businesses” to produce records and information to prepare for a trial on damages, and ordered Giuliani and his businesses to reimburse plaintiffs’ fees and costs for $89,172.50 (to go with the $43,684 previously ordered) plus interest, and for Giuliani “to reimburse such attorneys’ fees and costs associated with plaintiffs’ motion for sanctions, pursuant to Rule 37(e)”.

So, what do you think? Are you surprised that the Court issued default judgment sanctions for Giuliani and that Giuliani chose to concede plaintiffs’ claims rather than produce discovery? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.


  1. I see this quote- “Giuliani’s counsel replied, “I am not aware of his preservation efforts.””
    Makes me wonder why the attorney wasn’t sanctioned too? is the Zubulake case dead in DC?

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