Case 1:21-cv-03354-BAH Document 81 Filed 07/11/23 Page 1 of 44

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RUBY FREEMAN, et al.,

Plaintiffs, Case No. 1:21-cv-03354 (BAH)

v. Judge Beryl A. Howell

RUDOLPH W. GIULIANI,

Defendant.

PLAINTIFFS’ MOTION FOR DISCOVERY SANCTIONS AGAINST DEFENDANT

GIULIANI FOR FAILURE TO PRESERVE ELECTRONIC EVIDENCE
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TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1
RELEVANT FACTUAL BACKGROUND ....................................................................................3
LEGAL STANDARD....................................................................................................................14
ARGUMENT .................................................................................................................................16
I. THE COURT SHOULD SANCTION DEFENDANT GIULIANI FOR HIS
FAILURE TO TAKE REASONABLE STEPS TO PRESERVE ELECTRONIC
EVIDENCE. ...............................................................................................................16
A. Defendant Giuliani Admits That The Electronic Evidence Should Have Been
Preserved In Anticipation Of This Litigation. ................................................17
B. Defendant Giuliani Admits That He Has Failed To Take Reasonable Steps
To Preserve The Electronic Evidence In Violation Of Rule 37(e).................17
C. The Electronic Evidence Is Irretrievable As A Result Of Defendant
Giuliani’s Failure To Preserve. ......................................................................19
D. Plaintiffs Are Prejudiced By The Loss Of The Electronic Evidence. ............21
E. Defendant Giuliani Intended Not To Take Reasonable Steps To Preserve The
Electronic Evidence. .......................................................................................29
F. The Court Should Order Sanctions. ...............................................................31
1. The Court should order default judgment against Defendant Giuliani
on liability...........................................................................................31
2. The Court should order adverse inferences against Defendant
Giuliani. ..............................................................................................33
3. The Court should preclude Defendant Giuliani from relying on any of
the unpreserved electronic evidence...................................................35
G. In the Alternative, the Court Could Order Defendant Giuliani to Produce His
Devices to Plaintiffs .......................................................................................36
II. THE COURT SHOULD AWARD PLAINTIFFS’ FEES AND COSTS. .................37

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TABLE OF AUTHORITIES

Page(s)

Cases

Beck v. Test Masters Educ. Servs.,

289 F.R.D. 374 (D.D.C. 2013) ............................................................................................................. 30

Borum v. Brentwood Vill., LLC,

332 F.R.D. 38 (D.D.C. 2019) ........................................................................................................ passim

Butera v. District of Columbia,

235 F.3d 637 (D.C. Cir. 2001).............................................................................................................. 15

Done v. District of Columbia,

No. 1:19-CV-01173 (CJN), 2023 WL 3558038 (D.D.C. Feb. 14, 2023) ........................... 15, 18, 22, 37

Guarantee Co. of N. Am. USA v. Lakota Contracting Inc.,

No. CV 19-1601 (TJK), 2021 WL 2036666 (D.D.C. May 21, 2021) ...................................... 15, 31, 32

Harte-Hanks Commc’ns, Inc. v. Connaughton,

491 U.S. 657 (1989) ............................................................................................................................. 23

Herbert v. Lando,
441 U.S. 153 (1979) ............................................................................................................................. 23

Jim S. Adler, P.C. v. McNeil Consultants, LLC,

No. 3:19-CV-2025-K-BN, 2023 WL 2699511 (N.D. Tex. Feb. 15, 2023) .......................................... 19

Klayman v. Judicial Watch,

256 F.R.D. 258 (D.D.C. 2009) ............................................................................................................. 35

Mannina v. District of Columbia,

437 F. Supp. 3d 1 (D.D.C. 2020).................................................................................................... 18, 30

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) ............................................................................................................................. 22

St. Amant v. Thompson,

390 U.S. 727 (1968) ............................................................................................................................. 23

U.S. Bank Nat’l Ass’n v. Poblete,

No. CV 15-312 (BAH), 2017 WL 598471 (D.D.C. Feb. 14, 2017) ............................................... 31, 32

United States v. Philip Morris USA, Inc.,

327 F. Supp. 2d 21 (D.D.C. 2004)........................................................................................................ 36

US Dominion, Inc. v. Powell,

554 F. Supp. 3d 42 (D.D.C. 2021)........................................................................................................ 23

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Vasser v. Shulkin,
No. 14-CV-0185 (RC), 2017 WL 5634860 (D.D.C. Nov. 22, 2017) ................................. 15, 30, 31, 34

Victor Stanley, Inc. v. Creative Pipe, Inc.,

269 F.R.D. 497 (D. Md. 2010), aff’d in part, modified in part, No. CV MJG-06-2662,
2010 WL 11747756 (D. Md. Nov. 1, 2010) ......................................................................................... 32

Wash. Metro. Area Transit Comm’n v. Reliable Limousine Serv., LLC,

776 F.3d 1 (D.C. Cir. 2015)............................................................................................................ 15, 16

Webb v. District of Columbia,

146 F.3d 964 (D.C. Cir. 1998).............................................................................................................. 31

Zhi Chen v. District of Columbia.,

839 F. Supp. 2d 7 (D.D.C. 2011).................................................................................................... 33, 37

Other Authorities

Fed. R. Civ. P. 37 advisory committee's notes on rules - 2015 Amendment ........................................ 15, 16

Fed. R. Civ. P. 37(e) ..................................................................................................................................... 1

Fed. R. Civ. P. 37(e) advisory committee's notes on rules - 2015 Amendment ............................. 15, 16, 22

Fed. R. Civ. P. 37(e)(1) ......................................................................................................................... 14, 15

Fed. R. Civ. P. 37(e)(2) ................................................................................................................... 14, 16, 30

WILLFULNESS, Black’s Law Dictionary (11th ed. 2019) ........................................................................ 30

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Pursuant to Federal Rule of Civil Procedure 37(e) and the Court’s June 23, 2023 minute

order (“June 23 Order”), Plaintiffs Ruby Freeman and Wandrea’ ArShaye (“Shaye”) Moss

(collectively, “Plaintiffs”) respectfully move the Court to sanction Defendant Rudolph W. Giuliani

(“Defendant” or “Defendant Giuliani”) for failure to preserve electronic evidence (the “Motion”).

INTRODUCTION

In December 2020, Defendant Giuliani started widely publishing false claims that

Plaintiffs, two Georgia election workers, had engaged in a conspiracy to commit election fraud.

His claims were no more grounded in reality than a fever dream. However, given his stature and

that of his client (then-President Trump), state and federal investigators promptly undertook an

investigation of Defendant Giuliani’s claims, quickly concluded those investigations, and

subsequently announced in public that there was no basis for Giuliani’s claims. In the face of

seriatim official rejections of his false claims about Plaintiffs, Defendant Giuliani consciously

avoided further inquiry, instead choosing to continue publishing his accusations—sometimes

embellishing them with new imagined details—for more than a year. Plaintiffs brought this

lawsuit to clear their names and hold Defendant Giuliani accountable for besmirching their

reputations and brazenly disregarding the truth.

The time allotted for discovery in this case has concluded. Based on the record developed,

there is no real dispute that Defendant Giuliani published false and defamatory claims about

Plaintiffs to the world; that these publications caused Plaintiffs harm; that Defendant Giuliani’s

conduct was outrageous and caused Plaintiffs to suffer severe emotional distress; and that

Defendant Giuliani conspired with others to do the same.

The only defenses Defendant Giuliani appears poised to offer on liability are that his

allegations about Plaintiffs all constitute non-actionable opinion, and that he failed to act with the

requisite degree of fault—whether that standard is negligence or “actual malice.” The first defense
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amounts to a legal question that this Court will confront in due course. As for the second, Plaintiffs

dispute that this case should be governed by the “actual malice” standard, but even if that standard

did apply to private figures like Ruby Freeman and Shaye Moss, the law is clear that a defendant’s

self-serving attestations of good faith belief do not resolve the question of actual malice. Instead,

claims that turn on a defendant’s subjective belief may be tested through discovery into whether a

defendant in fact knew that his or her claims were false or recklessly disregarded the truth.

In this case, Defendant Giuliani has severely prejudiced Plaintiffs’ ability to test his claims

about what he knew, as well as what information he received but chose to ignore, before he made

his numerous defamatory claims between December 2020 and January 12, 2022. Plaintiffs know

that pertinent documentary evidence on those questions existed at one point, based not just on

common sense, but also because of discovery productions made by third parties. But Defendant

Giuliani himself has never produced meaningful documentary discovery in this case. And the

likely reason for that is because, as Defendant Giuliani’s May 30 declaration (the “Declaration”)

makes abundantly clear, he failed to take any steps to preserve relevant electronic evidence.

Throughout the course of discovery, Plaintiffs have repeatedly inquired into the status of

Defendant Giuliani’s preservation efforts, and the Court has also given Defendant Giuliani the

opportunity to cure his failures by ordering him to detail his preservation efforts and take steps to

cure any deficiencies. Moreover, Defendant 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.

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In sum, Defendant Giuliani has had eighteen months since Plaintiffs first filed this suit to

take reasonable steps to preserve his electronic evidence, including more than six months since

Plaintiffs first raised the question of preservation. Defendant Giuliani has had nearly three months

since Plaintiffs filed the motion to compel. Defendant Giuliani’s failure to preserve his electronic

records in the face of repeated reminders, and a personal awareness of his obligations, can and

should be interpreted by this Court as a deliberate effort to deprive Plaintiffs of material evidence

in this litigation.

In light of Defendant Giuliani’s willful misconduct, severe sanctions are appropriate. Fact

discovery in this matter concluded on May 22, 2023—a deadline which this Court has already

extended six months due almost entirely to Defendant Giuliani’s recalcitrance. While, in theory,

additional discovery might plausibly be able to remedy some of the prejudice Plaintiffs have

suffered, ordering that additional discovery would be inequitable and unjust. Plaintiffs have

already faced substantial delay in the adjudication of their claims. Fact discovery should not be

extended again simply because Defendant Giuliani has chosen not to comply with his obligations.

Indeed, sanctions exist to remedy the precise situation here—a sophisticated party’s abuse of

judicial process designed to avoid accountability, at enormous expense to the parties and this

Court. Defendant Giuliani should know better. His conduct warrants severe sanctions.

RELEVANT FACTUAL BACKGROUND

Plaintiffs initiated this lawsuit on December 23, 2021, ECF No. 1, and filed their operative,

amended complaint on May 10, 2022, ECF No. 22. Fact discovery opened on May 18, 2022, and

Plaintiffs served their first set of discovery requests on Defendant on May 20, 2022. Defendant

Giuliani’s counsel initially conveyed that the key electronic devices had been seized by the FBI

and that he had lost access to certain email and other accounts. ECF No. 44-4; ECF No. 44-5.

Defendant’s devices were returned to him no later than August 19, 2022. ECF No. 44-5.
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Defendant Giuliani’s counsel conveyed that there was a database that consisted of some set of

documents collected by the FBI when they seized certain of Defendant Giuliani’s devices in April

2021 (“TrustPoint”), but he did not know what documents were contained in that database. See

ECF No. 44 at 10–12; ECF No. 56 at 6–8; ECF No. 64 at 15–16. Between July 12 and November

1, 2022, Defendant Giuliani produced a total of 193 documents collected in response to Plaintiffs’

discovery demands in this case, none of which were particularly responsive. ECF No. 44 at 4–8.

Concerned that Defendant’s meager productions might be the result of spoliation, Plaintiffs

first requested confirmation that Defendant Giuliani had taken reasonable steps to preserve his

electronic evidence during a meet and confer on December 21, 2022. ECF No. 44-7. Counsel for

Defendant Giuliani confirmed in writing that he was not aware of any preservation efforts by

Defendant Giuliani, writing “I am not aware of his preservation efforts.” Id. In an email dated

February 6, 2023, Plaintiffs again asked counsel for Defendant Giuliani to confirm that “Mr.

Giuliani has preserved, searched, and produced documents from his e-mail accounts, devices,

social media accounts, messaging applications, or other electronic devices for documents

responsive to” Plaintiffs’ Requests for Production (“RFPs”). (Ex. 1.) Counsel for Defendant

Giuliani did not provide a response to that question. (Id.)

During Defendant Giuliani’s deposition on March 1, 2023, Plaintiffs specifically inquired

into Defendant Giuliani’s repositories of potentially relevant information and his preservation and

search efforts. Defendant Giuliani confirmed during his deposition that he used multiple phones,

email addresses, and messaging applications in the months following the 2020 presidential

election. (Ex. 4 at 17:14–19, 21:5–11, 22:24–25:6.) Defendant Giuliani claimed to have taken “a

quick look” for responsive material on messaging platforms and some of his devices but did not

“know” if that look related to “this case” or if he “lumped a group of cases together.” (Id. at 25:19–

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26:8, 26:20–27:7.) Defendant Giuliani could not recall ever reaching out to any of the companies

for applications he used, like WhatsApp or Signal, to ask them to pull down his data. (Id. at 28:9–

16.) When asked whether he had ever gone back to the companies, as far as searching the devices

seized by the FBI in April 2021 after they were returned, Defendant Giuliani claimed they were

“wiped out” when he received them back and any search of them “hasn’t helped because…I can’t

get anything off” of those devices. (Id. at 391:23–392:11.)

On March 20, 2023, Plaintiffs submitted a filing detailing the outstanding discovery

disputes with Defendant Giuliani and specifically argued that Defendant Giuliani had been unable

to confirm that he had adequately preserved materials responsive to Plaintiffs’ RFPs despite

Plaintiffs’ requests. ECF No. 36 at 6. Defendant Giuliani’s response was silent regarding his

attempts to preserve electronic evidence. ECF No. 38.

During a discovery conference before this Court on March 21, the Court asked counsel for

Defendant Giuliani whether Defendant Giuliani had “locked down – put a litigation hold on – all

of his records given the pendency of this litigation?” (Ex. 7 at 10:22–11:2.) Counsel for Defendant

Giuliani stated:

Well, Your Honor, I think the answer is yes. I don't know -- I don't recall in his
deposition if he was specifically asked that question. But, certainly, the documents
that were taken by the DOJ were locked – in April of 2021. So all of those
documents are fixed, so that's certainly locked in.

Everything after that -- I mean, I think he test- -- I think he answered an

interrogatory and said he has not -- he has not destroyed or deleted any documents.
So I think what they're asking for -- I don't know that there was so much concern
about whether the documents had been spoiled. But I think the concern is he needs
to certify that that has, in fact, not occurred; and I am not sure that he has -- I'm not
sure that he has done that.

I am not sure that there was specifically – I don't know that there was a specific
interrogatory asked, other than the one I mentioned that asked whether he deleted
documents. But he -- he certainly is willing to certify that however the Court would
like him to do so.

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(Id. at 11:3–21 (emphasis added).)

Following the March 21 discovery hearing, the Court issued a minute order directing

Defendant Giuliani to, inter alia, (a) submit notice to the Court describing in specific terms the

data on TrustPoint that were searched in response to Plaintiffs’ RFPs, including date range and

contents (e.g., social media accounts, text messages, and communications on other messaging

platforms, such as Signal, Telegram, etc.); and (b) what locations and data sources remained for

searches to be completed to respond fully to Plaintiffs’ RFPs. March 21 Minute Order. In

response, Defendant filed a notice on March 24 in which he did not describe in specific terms the

data on TrustPoint or what locations and data sources remain for searches to be completed. ECF

No. 40; see ECF No. 44 at 11.

On April 17, with the Court’s leave, Plaintiffs’ filed a motion to compel Defendant

Giuliani, specifically requesting that the Court compel Defendant Giuliani to detail his

preservation efforts. ECF No. 44 at 16–18. In his opposition, the only effort regarding

preservation that Defendant Giuliani was able to articulate was an action he did not even take, but

instead one taken by the FBI when that agency seized Giuliani’s electronic devices in April of

2021. ECF No. 51 at 3–6.

In their briefing, Plaintiffs explained having obtained discovery from third-parties and

public sources making clear what Plaintiffs suspected all along: there exists, somewhere in various

accounts and devices, documentary evidence that goes to the heart of Plaintiffs claims. For

example, on April 26, between Plaintiffs filing their motion to compel and reply in support thereof,

Plaintiffs received a production of documents from Christina Bobb. That production yielded a text

thread with Defendant Giuliani discussing sending a video of Plaintiffs to Rusty Bowers, then the

Speaker of the Arizona House of Representatives, ECF No. 56-3; and an August 17, 2022, direct

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message with Ms. Bobb on Instagram, which Defendant has never produced, ECF No. 56-4. See

ECF No. 56 at 3, 5. Defendant Giuliani has never produced either of those documents or any

social media communications from Ms. Bobb, and he had never even disclosed the phone number

he used to communicate with Ms. Bobb to Plaintiffs prior to Ms. Bobb’s production. (Gottlieb

Decl. ¶ 3); ECF No. 56 at 3, 5. Nor are either of these documents listed in Defendant Giuliani’s

privilege log as far as Plaintiffs can discern. (Ex. 2 at 11:25–13:12); ECF No. 44 at 8; (Gottlieb

Decl. ¶ 3; Ex. 3.)

A production from one of Defendant Giuliani’s assistants, third-party Christianne Allen,

yielded a December 7, 2020, email from a Fox News reporter to “[email protected],”

seeking a comment from Defendant Giuliani on one of the key early rebuttals of Defendant

Giuliani’s claims—i.e., Georgia Secretary of State Chief Investigator Frances Watson’s December

6, 2020, affidavit, specifically addressing and refuting Defendant Giuliani’s claims:

Good morning,

First, I hope Mayor Giuliani is doing well and has a full and speedy
recovery from Covid-19. Has he had a chance to see the affidavit
from Frances Watson, the chief investigator for the Georgia
secretary of state, that was filed yesterday? Watson claims that,
according to his investigation, poll watchers and media were not
asked to leave before counting ended, but that they “simply left on
their own when they saw one group of workers, whose job was only
to open envelopes and who had completed that task, also leave.”
Watson also says that “there were no mystery ballots that were
brought in from an unknown location and hidden under tables,”
claiming that ballots were sealed in boxes and placed under the table
by workers who thought they were done for the night, and that the
boxes were later opened when counting continued. Watson does not
explain why workers thought they were done.

Does Mayor Giuliani have any comment on this?

ECF No. 64-7. Defendant Giuliani has never produced that email (or listed on a privilege log as

far as Plaintiffs can discern).

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Similarly, the U.S. House of Representatives’ Select Committee to Investigate the January

6th Attack on the U.S. Capitol released a December 13, 2020, email from Defendant Giuliani to

Boris Epshteyn, an advisor to the 2020 Trump Campaign, approving a draft statement from the

Trump Legal Team, which reiterates Defendant’s false claims about Plaintiffs: “Georgia has video

evidence of 30,000 illegal ballots cast after the observers were removed.” ECF No. 56-7 at 3.

Defendant Giuliani has never produced that email to Plaintiffs, and the December 13 email does

not appear on any privilege log produced in this case (or listed on a privilege log as far as Plaintiffs

can discern). (Gottlieb Decl. ¶ 4.)

Defendant Giuliani has also never produced (or listed on a privilege log as far as Plaintiffs

can discern) a December 7, 2020, text thread between Mr. Epshteyn, Defendant Giuliani, and

others. The thread reads:

Mr. Epshteyn (12:54 p.m. ET): Team –

Mr. Epshteyn (12:54 p.m. ET): Urgent POTUS request need best examples of
“election fraud” that we’ve alleged that’s super easy
to explain.
Doesn’t necessarily have to be proven, but does
need to be easy to understand
Is there any sort of “greatest hits” clearinghouse that
anyone has for best example?
Thank you!!!
...
Mr. Giuliani (12:57 p.m. ET): The security camera in Atlanta alone captures theft
of a minimum of 30,000 votes which alone would
change result in Georgia Remember it will live in
history as the theft of a state if it is not corrected by
State Legislature
...
Mr. Giuliani (1:22 p.m. ET): [REDACTED] GA, the state recorded on camera
for history, [REDACTED]

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(Gottlieb Decl. ¶ 3; Ex. 11.) These are not the only examples Plaintiffs have of relevant documents

and communications that appear to have vanished from Defendant Giuliani’s repositories. (Decl.

¶ 5.)

Discovery from Defendant Giuliani and third-parties suggests that there should be many

records responsive to Plaintiffs’ discovery requests in this case. For example, Defendant Giuliani

testified that he “talked to many people” who said that poll observers were excluded from State

Farm Arena on election night 2020 and that “there were constant complaints about that.” (Ex. 4

at 352:22–353:21.) Christina Bobb testified that Defendant Giuliani was “getting like 10,000

emails a day” during the relevant time period, and that she was copied on some emails precisely

to ensure that certain emails were actually brought to Defendant’s attention. (Ex. 5 at 40:16–

41:21.) Similarly, Bernard Kerik testified that Defendant Giuliani’s team was receiving leads on

possible fraud from “a hundred different sources” during November and December 2020. (Ex. 6,

Kerik at 47:12–48:7.)

On May 19, 2023, three days before the close of fact discovery, the Court held another

discovery hearing, during which Defendant Giuliani admitted that he had been under an obligation

to preserve documents related to this litigation since before this action was even filed. (Ex. 2 at

67:21–68:2.) When the Court inquired as to what steps Defendant Giuliani had taken to preserve

his electronic evidence, counsel for Defendant stated that Defendant Giuliani “has not deleted any

documents.” (Id. at 65:20–25.) The Court explained that “not deleting documents is not the same

as preserving the information in a manner that can be retrieved and searched.” (Id. at 66:1–20.)

With respect to pre-April 2021 material, counsel for Defendant Giuliani represented (without

substantiation of any kind) that Defendant Giuliani “lost the ability to do any preservation as of

April 2021” and that whatever data was preserved “was preserved because it was taken by the

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government.” (Id. at 67:11–18.) Defendant Giuliani represented to the Court that “90 to 95 percent

of my communication is done on Apple, and it’s backed up by the iCloud.” (Id. at 53:4–8.) But

that there “is a problem with the cloud. When we go back to the period of time -- material that

was seized by the FBI, that I don’t have access to on the cloud. They have it, but I don’t have

access to it.” (Id. at 95:17–97:8.) Regarding his preservation obligations, Defendant Giuliani

stated “understand, I have been doing this for 50 years; I understand the obligations.” (Id. at 68:5–

6.)

Following the hearing, the Court ordered Defendant Giuliani to, by May 30, inter alia:

(1) file a declaration, subject to penalty of perjury, that details:

a) All efforts taken to preserve, collect, and search potentially
responsive data and locations that may contain responsive materials
to all of plaintiffs’ Requests for Production (RFP);
b) A complete list of all “locations and data” that defendant used to
communicate about any materials responsive to any of Plaintiffs’ RFPs
(including, but not limited to, specific email accounts, text messaging
platforms, other messaging applications, social media, devices, hardware,
and any form of communication); [and]
c) The specific “data” located in the TrustPoint database, including—
i) a list identifying the source devices from which the data was
extracted or obtained;
ii) for each such device, the type of device (i.e., iPhone, Macbook,
laptop, iPad, etc.) and user, if known;
iii) a list identifying any social media accounts, messaging
applications, and email accounts from which the data was extracted
or obtained; and
iv) for each such account and application, the account name and
user . . . .
May 19 Minute Order (the “May 19 Order”) (emphasis added).

On May 30, Defendant Giuliani filed a declaration, but failed to resolve these issues. ECF

No. 60 (the “Giuliani Declaration” or “Giuliani Decl.”). The Giuliani Declaration identifies the

following data sources as likely to contain (or at one point to have contained) responsive

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information: (1) three personal email accounts (Gmail, iCloud, and Protonmail); (2) an iCloud

account; (3) three phone numbers that he used to send messages via text and messaging

application; (4) three messaging applications (Signal, WhatsApp, Telegram); (5) five social media

handles, (items (1) through (5) collectively, “Identified Sources”); (6) and nine devices, two of

which were not seized by the FBI (“Seized Devices” as to the seven seized, “Unseized Devices”

as to the two unseized, and “Responsive Devices” as to the nine collectively). Giuliani Decl. ¶ 3.

The Declaration is silent on any efforts by Defendant Giuliani to take any steps to preserve

the Identified Sources or the Responsive Devices. See generally id. The Declaration states that

Defendant Giuliani turned off the auto-delete function at some period “in late 2020 or early 2021”

on his “email, messaging, communication, or other document storage platforms” (without

specifying which of those platforms this action applied to, or the process that Defendant Giuliani

used to take such steps) and did not manually delete “any electronic documents or dispose[] of any

paper files.” Id. ¶ 2.

As to TrustPoint, the Declaration represents that “TrustPoint One documents consist of all

documents that were extracted from the electronic devices taken by the DOJ in April 2021 when

the DOJ seized those devices” but does not confirm what exactly was “extracted.” Id. ¶ 4. The

Declaration is silent on whether TrustPoint contains all of Defendant Giuliani’s iMessage, text

message, WhatsApp, Signal, Telegram, or social media accounts or rather, if it contains any of

them, it is limited to whatever communications DOJ happened to extract from whatever

information happened to be stored locally on the Seized Devices. Id. ¶ 5. The Declaration does

not include any representations about whether the government extracted Defendant Giuliani’s

Gmail or Proton Mail accounts or his Business Files (as defined below), in part or in their entirety.

Id. ¶¶ 4–5. The Declaration explains that if Defendant Giuliani had accessed his social media

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accounts “via the web, no data from social media would have been extracted from the devices” to

TrustPoint. Id. ¶ 5. As to the iCloud account, the Declaration assumes that data would have also

been included “because I synced my iCloud to my devices” without providing any confirmation

of when or how such activities might have taken place, such as the intervals at which Defendant

Giuliani generally “synced” his “iCloud to my devices” or whether all of his various accounts were

included within such activities. Giuliani Decl. ¶ 5. The Declaration is silent on any efforts to

recover any of the evidence that was “wiped” from his devices. See generally Giuliani Decl.

Plaintiffs responded to the Declaration in a filing on June 14 (as directed by the Court’s

May 31 Minute Order). ECF No. 64 (the “Response to the Declaration”). In the Response to the

Declaration, Plaintiffs show in detail that the Declaration does not explain any affirmative steps

by Defendant Giuliani to preserve any materials relevant to this action at any time. Id.

On June 16, Defendant produced 4,902 TrustPoint files to Plaintiffs. ECF No. 77 at 13.

Of those files, 3,233 are .txt files. ECF No. 77-1 ¶ 5. Txt files are generally non-usable, non-

readable raw data. Id. Of those txt files, 2,350 are completely non-readable, non-usable computer

files known as “blobs.” Id. In his position statement, Defendant Giuliani opined that, in his non-

expert view, the large volume of blank and/or non-responsive documents in his June 16 production

of materials from TrustPoint “appears to be a result of file corruption resulting from the DOJ

seizure.” ECF No. 77 at 20. The non-txt files are overwhelmingly non-responsive junk including:

non-readable computer code; emails advertising a year-long spiritual apprenticeship course;

informational packets regarding Microsoft auto-updates (in five different languages); articles and

memes about George Floyd; and death notices from The Washington Post. (Gottlieb Decl. ¶ 6.)

On June 23, the Court granted Plaintiffs’ request for leave to file a motion for sanctions for

Defendant Giuliani’s failure to sufficiently preserve discoverable information and directed

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Plaintiffs to file their motion by July 7, 2023. June 23 Minute Order Granting Plaintiffs’ Request

for Leave to File a Motion for Sanctions.

On June 29, 2023, Defendant introduced further confusion regarding TrustPoint, when his

counsel provided Plaintiffs with a sealed motion filed by Defendant Giuliani’s criminal defense

counsel in In re Search Warrant Dated April 21, 2021, No. 21-MJ-4335 (S.D.N.Y.). ECF No. 77-

2. That motion makes clear that the records collected in the TrustPoint database were collected as

part of an investigation into a possible Foreign Agents Registration Act violation “involving

Ukrainian individuals, Ambassador Maria Yovanovitch and the office of the U.S. Ambassador to

the Ukraine; a trip by Giuliani to Poland in 2019 and issues involving Franklin Templeton and

funds misappropriated from the Ukraine.” (Gottlieb Decl. ¶ 7.) In that motion, Defendant

Giuliani’s criminal defense counsel requested that the New York court order the Government to

suppress and destroy the majority of records contained in the TrustPoint database, and limit any

remaining records to a time period between 2018 and 2019. (Id.) Plaintiffs do not know the result

of that motion, as the docket remains sealed, or whether anything was ultimately deleted or

suppressed from the TrustPoint database. In all events, it is now undisputed that the records

contained in TrustPoint were collected in response to a search warrant that had nothing to do with

the 2020 election, or Plaintiffs’ claims, and further that Defendant Giuliani attempted not to

preserve the evidence involved in that collection, but instead to have that evidence narrowed and

(in some circumstances) deleted. (Id.)

On June 30, 2023, Defendant made a production of 3,407 documents from TrustPoint. On

the same day, the parties submitted a joint status report. ECF No. 77. As with the production on

June 16, the June 30 production appears to be largely non-responsive junk files, including: 258

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“blob” files; 141 Apple information packets in various languages; and more death notices from

The Washington Post. (Gottlieb Decl. ¶ 8.)

On July 6, one day before Plaintiffs were required to file this Motion, counsel for Defendant

Giuliani reached out to Plaintiffs’ counsel offering to discuss whether an agreement might be

reached in lieu of Plaintiffs filing this motion. (Gottlieb Decl. ¶ 9.) In response to that outreach,

counsel for each of the Parties negotiated over the course of two days in an effort to reach such an

agreement. (Id.) When it appeared by late afternoon on Friday, July 7 that counsel appeared to

agree upon a set of key principles for that agreement, the Parties filed a motion, ECF No. 80,

seeking a brief extension of time to file this Motion. (Id.) The representations made in that Motion

relied upon representations from Counsel for Plaintiffs and Defendant Giuliani. (Id.) However,

counsel for Defendant Giuliani communicated on the morning of Monday July 10, for the first

time, that Defendant Giuliani did not agree with the key principles referenced above, and

accordingly, the agreement contemplated in ECF No. 80 was not achievable. (Id.) That turn of

events necessitated this Motion.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 37(e), the Court may sanction a party “[i]f

electronically stored information that should have been preserved in the anticipation or conduct of

litigation is lost because that party failed to take reasonable steps to preserve it, and it cannot be

restored or replaced through additional discovery.” Rule 37(e)(1) authorizes, upon a finding of

prejudice, sanctions to cure that prejudice, whereas Rule 37(e)(2) authorizes sanctions upon a

finding that a party intended to deprive another party of information. The Court may impose

curative measures such as “forbidding the party that failed to preserve information from putting

on certain evidence, permitting the parties to present evidence and argument to the jury regarding

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the loss of information, or giving the jury instructions to assist in its evaluation of such evidence

or argument.” Fed. R. Civ. P. 37(e) advisory committee’s notes on rules – 2015 Amendment.

“Discovery sanctions serve two purposes: punishing disobedient parties and deterring

others from emulating their behavior.” Wash. Metro. Area Transit Comm’n v. Reliable Limousine

Serv., LLC, 776 F.3d 1, 6–8 (D.C. Cir. 2015) (holding district court did not abuse its discretion by

entering default judgment where district court found that defendant willfully refused to participate

in discovery and violated numerous court orders); see also Butera v. District of Columbia, 235

F.3d 637, 661 (D.C. Cir. 2001); Guarantee Co. of N. Am. USA v. Lakota Contracting Inc., No. CV

19-1601 (TJK), 2021 WL 2036666, at *3–4 (D.D.C. May 21, 2021).

“When analyzing a motion for sanctions under Rule 37(e)(1), courts consider whether (1)

electronically stored information (ESI) should have been preserved in the anticipation or conduct

of litigation; (2) a party failed to take reasonable steps to preserve the ESI; (3) ESI was lost as a

result; and (4) the ESI could not be restored or replaced by additional discovery.” Doe v. District

of Columbia, No. 1:19-CV-01173 (CJN), 2023 WL 3558038, at *12 (D.D.C. Feb. 14, 2023)

(cleaned up). The party alleging spoliation bears the burden of proof, Borum v. Brentwood Vill.,

LLC, 332 F.R.D. 38, 43 (D.D.C. 2019), and that burden is not onerous. See Vasser v. Shulkin, No.

14-CV-0185 (RC), 2017 WL 5634860, at *4 (D.D.C. Nov. 22, 2017) (finding the burden was

satisfied with “relatively thin” evidence).

For sanctions permitted by Rule 37(e)(1), the Court must then determine whether the

moving party suffered prejudice as a result of the failure to preserve and may upon a finding of

prejudice may “impose proportional sanctions upon the finding of prejudice.” Borum, 332 F.R.D.

at 46–47 (D.D.C. 2019). Courts have “discretion to determine how best to assess prejudice in

particular cases.” Fed. R. Civ. P. 37 advisory committee’s notes on rules – 2015 Amendment.

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And imposing the sanctions necessary to cure prejudice is “entrusted to the court’s discretion.” Id.

37(e) advisory committee’s notes on rules – 2015 Amendment.

Under Rule 37(e)(2), if the Court finds that a party intended to deprive another of

information, “no separate showing of prejudice is required because ‘the finding of intent . . . can

support . . . an inference that the opposing party was prejudiced by the loss of information.’”

Borum, 332 F.R.D. at 48 (quoting Fed. R. Civ. P. 37(e) advisory committee’s notes on rules – 2015

Amendment). The Court may impose the most severe sanctions, including default judgment and

adverse inferences, where it finds that the party that lost the information acted with the intent to

deprive another party of the information's use in the litigation. Fed. R. Civ. P. 37(e) advisory

committee’s notes on rules – 2015 Amendment; Fed. R. Civ. P. 37(e)(2). The Court of Appeals

reviews the imposition of discovery sanctions for abuse of discretion. See Wash. Metro. Area

Transit Comm’n, 776 F.3d at 4.

ARGUMENT

I. THE COURT SHOULD SANCTION DEFENDANT GIULIANI FOR HIS

FAILURE TO TAKE REASONABLE STEPS TO PRESERVE ELECTRONIC
EVIDENCE.

Defendant Giuliani has not taken any steps, let alone reasonable steps, to preserve

electronic evidence in the locations he identified as potentially containing responsive information.

Specifically, Defendant Giuliani has failed to take reasonable steps to preserve, and therefore failed

to produce, any meaningful amount of electronic evidence that surely was contained within his

accounts and devices, including: (1) three personal email accounts (Gmail, iCloud, and

Protonmail); (2) an iCloud account; (3) three phone numbers that he used to send messages via

text and messaging application; (4) three messaging applications (Signal, WhatsApp, Telegram);

(5) five social media handles; (6) and nine devices, two of which were not seized by the FBI

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(together, the “Electronic Evidence”).1

A. Defendant Giuliani Admits That The Electronic Evidence Should Have Been
Preserved In Anticipation Of This Litigation.

Defendant Giuliani conceded that he understands that he has been obligated to preserve

materials relevant to this lawsuit’s claims since before Plaintiffs even filed suit. (Ex. 2 at 67:21–

68:2); see also Borum, 332 F.R.D. at 45 (explaining that the duty to preserve evidence starts when

a party anticipates litigation). And Defendant Giuliani cannot credibly claim that the materials

on his own devices, that he testified to using during the time period at issue in the litigation to

discuss issues relevant to the litigation, do not meet the low-bar for potential relevance. See

Borum, 332 F.R.D. at 45 (explaining that a party “must preserve potentially relevant evidence

that might be useful to an adversary”).

B. Defendant Giuliani Admits That He Has Failed To Take Reasonable Steps

To Preserve The Electronic Evidence In Violation Of Rule 37(e).

Defendant Giuliani admits that he did not take reasonable steps to preserve the Electronic

Evidence because Defendant Giuliani admits that he essentially took no steps to preserve the

Electronic Evidence (apart from his claim to have disabled the auto-delete function on certain

accounts).2 See ECF No. 64 at 12–18; see generally Giuliani Decl. Defendant Giuliani also

1
Plaintiffs note that they are submitting this Motion without having been able to complete a full
review of Defendant Giuliani’s productions from June 16 and 30. It is possible, given the nature
of the productions, that a complete review may require the assistance of a forensics vendor given
the data at issue. Plaintiffs do not object if this Court defers ruling on this Motion in full or in part,
until Plaintiffs have been afforded the opportunity to complete their analysis of Defendant
Giuliani’s productions, and are willing to provide an update to this Court in the form of a
supplement to this Motion.
2
The only effort at preserving Defendant Giuliani’s Electronic Evidence was not his, but rather
the FBI’s, when it seized certain of Defendant Giuliani’s devices in April 2021 and retained some
portion of those electronic materials on the TrustPoint database. Defendant Giuliani may not claim
credit for the FBI’s seizure, not just because it was not a step he took, but also because he has been
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admits by omission that he has not taken any steps to recover any Electronic Evidence—whether

via the retention of a forensics company or by contacting various email or social media

platforms—that he claims was “wiped” from his devices.

Courts routinely find that a party failed to take reasonable steps to preserve electronic

evidence where the party made significantly greater efforts at preservation than Defendant

Giuliani’s paltry steps here. See, e.g., Doe, 2023 WL 3558038, at *14 (finding the defendant

“failed to fulfill its obligations by a long shot” where its only preservation effort was a partial

litigation hold and text messages from the relevant time period were lost); Mannina v. District of

Columbia, 437 F. Supp. 3d 1, 13 (D.D.C. 2020) (holding a party’s issuance of a litigation hold

three years after it anticipated litigation was unreasonable). The only “effort” Defendant Giuliani

has made was to turn off auto-delete at some period “in late 2020 or early 2021” on his

(undefined) “email, messaging, communication, or other document storage platforms” and his

claim that he refrained from manually deleting “any electronic documents or dispose[] of any

paper files.” Giuliani Decl. ¶ 2. But Defendant Giuliani’s representation lacks the kind of details

that would make it worthy of credit—he has not explained which of his accounts had auto delete

functions on them, how he turned them off (if so) or when, whether he did so or tasked someone

else to do so, and whether he sought to recover any records (from his various online accounts)

confirming these changes. And in any event, as the Court recognized during the Motion to

unable to provide any assurance that TrustPoint contains all electronic evidence from all the Seized
Devices, despite being ordered by the Court to do so. March 21 Minute Order; May 19 Minute
Order; ECF No. 64 at 14–16. Finally, assuming the FBI preserved all materials on TrustPoint’s
database, this effort only preserved materials generated prior to April 2021.

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Compel hearing, “not deleting documents is not the same as preserving the information in a

manner that can be retrieved and searched.” (Ex. 2 at 66:1–20; see also id. at 87:9–23.)

C. The Electronic Evidence Is Irretrievable As A Result Of Defendant Giuliani’s

Failure To Preserve.

Electronic evidence is deemed irremediably lost for purposes of Rule 37 where, as here, a

custodian acknowledges that information has been lost, attempts to recover that information are

unsuccessful, and no amount of discovery will confirm the extent to which information was lost.

Borum, 332 F.R.D. at 46. To combat a finding of loss, “[i]t is not sufficient” for a custodian to

claim that all of relevant emails “must have been preserved and produced through . . . other

custodians’ emails.” Jim S. Adler, P.C. v. McNeil Consultants, LLC, No. 3:19-CV-2025-K-BN,

2023 WL 2699511, at *20 (N.D. Tex. Feb. 15, 2023) (citing Borum, 332 F.R.D. at 46). In Borum,

for example, a company lost its own copies of an employee’s emails. 332 F.R.D. at 46. This Court

held that the evidence should be deemed lost because the employee likely sent emails to only

external parties without copying another employee, such that it was impossible for the custodian

to fully recover all of that employee’s e-mails, and because “no amount of discovery w[ould]

confirm the extent to which information was lost.” Id.

The record here supports a finding that Defendant Giuliani’s electronic evidence is

irretrievable. Defendant Giuliani has repeatedly conceded as much. In an August 12, 2022, email,

Defendant’s counsel represented that Defendant Giuliani had lost access to some of his “icloud,

email accounts, etc.” after the FBI seized his devices. ECF No. 44-5 at 4. In his March 1

deposition, Defendant Giuliani testified that at least some of the devices returned by the FBI had

been wiped. (Ex. 4 at 391:23–392:11.) At the March 21 discovery hearing, Defendant Giuliani

explained that he has lost access to at least one email account. (Ex. 7 at 20:22–21:1.) At the

Motion to Compel hearing, Defendant Giuliani explained that he no longer has access to his iCloud

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account for the relevant time period, which would have contained “90 to 95 percent” of his

communications. (Ex. 2 at 53:4–8, 95:17–97:8); (see also Ex. 4 at 21:20–22:10, 27:21–28:8.)

After reiterating that he cannot access his iCloud account for the relevant period, Defendant

Giuliani himself suggested that that evidence may have been “destroy[ed].” (Ex. 2 at 96:8–18.)

Separately, Defendant has never demonstrated what exactly is on the TrustPoint database,

such that the Court or Plaintiffs may have any degree of confidence that it contains all of

Defendant’s potentially relevant documents from the pre-April 2021 period. See supra at pp. 4–

6, 11. And his searches and productions of that database have failed to yield clearly relevant

evidence, see supra at pp. 12–13, which strongly suggests the TrustPoint database is incomplete

as to electronic evidence pre-dating the FBI’s seizure in April 2021.

What is missing from all of Defendant Giuliani’s various representations is any

documented effort to recover this allegedly lost evidence. To the contrary, as mentioned above,

on June 29, Defendant’s counsel produced a sealed motion to Plaintiffs’ counsel in which

Defendant’s criminal defense attorneys specifically requested that all evidence outside of a time

period between 2018 and 2019 be destroyed—a motion the resolution of which Plaintiffs do not

know. (Gottlieb Decl. ¶ 7.) Most recently, in the parties’ June 30, 2023, joint status report,

Defendant Giuliani reported that many of the files he produced from the TrustPoint database are

blank or consist of a jumble of text because of “file corruption.” ECF No. 77 at 20. But at no

point, to Plaintiffs’ knowledge, has Defendant Giuliani ever claimed to have sought to remedy

these issues—whether by hiring a forensics vendor to examine his devices, by contacting Apple to

determine what if anything might be recovered from his supposedly corrupted iCloud account, or

by contacting various social media platforms to determine what if anything might be recovered

from his Instagram, Facebook, Twitter, or other social media accounts. Indeed, to date, Defendant

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Giuliani has still not even produced to Plaintiffs the most rudimentary phone records from the

provider of his cell phone accounts.

Further, Plaintiffs have been prejudiced in even being able to ascertain the full

consequences of Defendant Giuliani’s lackadaisical approach to his discovery obligations. It is

still unclear whether Plaintiffs will ever understand what precisely the FBI transferred (or did not

transfer) from Defendant Giuliani’s Seized Devices; nor do Plaintiffs know the actual status of

Defendant Giuliani’s cloud-based accounts. Moreover, at least one third-party, Katherine Friess,

with whom Defendant Giuliani was in close contact when he first began making his claims about

Plaintiffs and was working with Defendant Giuliani in the aftermath of the 2020 election, has

vanished. Despite months of efforts, including extensive investigation and an order from this

Court authorizing Plaintiffs to serve Katherine Friess by alternative service, see ECF No. 34;

December 20, 2022 Minute Order; ECF No. 34-5 (listing Ms. Friess on various privilege log

entries), Ms. Friess has never responded to Plaintiffs’ subpoenas nor provided documentary

evidence, and Defendant Giuliani has declined to say where she might be.

When considered together, (1) Defendant Giuliani’s direct admissions of loss of access to

evidence, (2) Defendant Giuliani’s defiance of multiple court orders requiring him to provide a

meaningful description of what is and is not located in the TrustPoint database, (3) the evidence

Plaintiffs have obtained from other sources but not from Defendant Giuliani, and (4) the

unavailability of key witnesses are more than sufficient to conclude that electronic evidence has

been lost for purposes of Rule 37.

D. Plaintiffs Are Prejudiced By The Loss Of The Electronic Evidence.

Defendant Giuliani’s failure to preserve the Electronic Evidence has severely prejudiced

Plaintiffs’ ability to learn what he knew or did not know—including what information he

received, and what he did or did not do in response to that information—when he published his
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defamatory claims. That information is critical to permit Plaintiffs to evaluate and rebut

Defendant Giuliani’s defense that he did not act with the requisite degree of fault. Rule 37(e)

“leaves judges with discretion to determine how best to assess prejudice in particular cases,”

including how to allocate the burden of proving prejudice. Fed. R. Civ. P. 37(e) advisory

committee's notes on rules – 2015 Amendment. In evaluating prejudice, courts should consider

“the information’s importance in the litigation.” Fed. R. Civ. P. 37(e) advisory committee's notes

on rules – 2015 Amendment. Where it is difficult to determine the content of lost information,

courts must evaluate whether it is fair to place the “burden of proving prejudice on the party that

did not lose the information.” Id; see also Doe, 2023 WL 3558038, at *14–15 (finding plaintiff

was prejudiced by loss of ESI where she came forward with “plausible, concrete suggestions as

to what the destroyed evidence might have been”) (internal citations omitted). In assessing

prejudice, courts may also weigh the time and resources a party spent as a result of the spoliation.

See, e.g., Doe, 2023 WL 3558038, at *15 (finding plaintiff was prejudiced by defendant’s

spoliation by having to spend time conferring with opposing counsel and deposing witnesses on

the issue and filing the sanctions motion)

In this case, Defendant Giuliani argues that because Plaintiffs are public figures (which

Plaintiffs contest), to prove their defamation claim, Plaintiffs must prove that Defendant Giuliani

published his claims with “actual malice.” E.g., ECF No. 26-2 at 8–9, 18–19; ECF No. 33 ¶ 193.

If the actual malice standard applies,3 Plaintiffs will need to prove that Defendant Giuliani knew

his claims were false or that he acted with reckless disregard for the truth. E.g., N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 279–80 (1964). Because defamation defendants typically do not

3
Plaintiffs do not concede that actual malice is the appropriate standard and, to the contrary, as
Plaintiffs will argue in summary judgment briefing, the negligence standard should apply.

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acknowledge an “awareness of falsehood,” Herbert v. Lando, 441 U.S. 153, 170 (1979), plaintiffs

in actual malice cases are permitted to discover and “to prove the defendant’s state of mind through

circumstantial evidence.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 668

(1989); see also Herbert, 441 U.S. at 165 (acknowledging that plaintiffs may discover and use

“any direct or indirect evidence relevant to the state of mind of the defendant”) (emphasis added).

Plaintiffs cannot fairly litigate their claims without access to circumstantial evidence of

Defendant Giuliani’s state of mind—that evidence is vital to Plaintiffs’ ability to rebut Defendant’s

self-serving attestations of good faith belief. The Supreme Court has explained that a defendant’s

unsupported claims of good faith do not resolve the issue of actual malice. St. Amant v. Thompson,

390 U.S. 727, 732 (1968). Instead, good faith defenses can and must be tested through discovery,

including by pursuing evidence that a defendant: fabricated claims out of whole cloth; was aware

that the published claims were false; consciously avoided finding out the truth; relied on wholly

unreliable sources; set out to make facts conform to a preconceived narrative; published their

claims with an ulterior motive; and had economic or other incentives to misrepresent the facts,

among others. See, e.g., Harte-Hanks Commc’ns, Inc., 491 U.S. at 692 (avoidance of the truth);

St. Amant, 390 U.S. at 732 (fabrication and unreliable sources); Herbert, 441 U.S. 153, 163–65 &

nn.12, 15 (improper motive); US Dominion, Inc. v. Powell, 554 F. Supp. 3d 42, 60–61 (D.D.C.

2021) (preconceived narrative of election fraud). Through third-party discovery, Plaintiffs have

developed considerable evidence supporting each of these responses to Defendant Giuliani’s claim

of good faith, yet Plaintiffs have been undermined by Defendant’s discovery misconduct at every

turn. Much of this evidence is also relevant to Plaintiffs’ IIED claim, which requires Plaintiffs to

demonstrate that Defendant Giuliani acted intentionally or recklessly. See ECF No. 31 at 23. And

evidence of whom Defendant Giuliani worked with and the extent of those individuals’ acts in

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defaming and inflicting emotional distress on Plaintiffs is relevant to Plaintiffs’ civil conspiracy

claim. Id.

In this case, Defendant Giuliani’s failure to preserve the Electronic Evidence has severely

prejudiced Plaintiffs’ ability to test his claim that he believed, and did not recklessly disregard the

falsity of, his false claims about Plaintiffs. The following examples are illustrative.

First, as Plaintiffs alleged, Georgia election officials investigated Defendant Giuliani’s

claims in the hours and days after December 3, discovered that they were false, and broadcast

their falsity to the world in refutations that were amplified by fact checking organizations. ECF

No. 22 ¶¶ 40–56. Every message Defendant Giuliani sent or received about these investigations

is probative of Defendant’s actual malice with respect to all of the challenged statements in

Plaintiffs’ Complaint, because they evidence, at a minimum, his knowledge of falsity and

conscious avoidance of the truth.

Defendant has failed to produce any records of having received or discussed these

refutations, despite a clear record that such evidence existed. On December 7, 2020, a Fox News

reporter emailed to ask Defendant Giuliani for comment on one of the key rebuttals, the

December 6, 2020 Affidavit of France Watson. ECF No. 64-7. At his deposition, Defendant

Giuliani testified that, at some point prior to December 8, 2020 (and well before the first

actionable statement on December 23, 2020), he learned of (1) a December 7 press conference,

during which Georgia Voting Implementation Gabriel Sterling specifically rebutted his claims

about Plaintiffs, and Georgia Secretary of State Brad Raffensperger re-certified the Georgia

election results after conducting a recount requested by the Trump Campaign; and (2) other,

unspecified actions by Messr. Raffensperger and Sterling “in general.” (Ex. 4 at 328:3–332:4,

376:7–378:11.) Defendant Giuliani testified that this knowledge of the December 7 press

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conference was the basis for his December 8 tweet that, “The Georgia video proves now and for

posterity that crooked Democrat officials stole the votes to try to win the state and Republicans

are covering up for them.” (Id. at 377:17–378:9.) But Defendant Giuliani was not able to specify

when he learned of those rebuttals or what exactly he learned. (See id. at 376:7–378:11). Nor

was Defendant Giuliani able to identify whether he discussed these statements with any other

individuals, in person or via email, text, virtual meeting, or otherwise. Without Defendant

Giuliani’s electronic data, Plaintiffs are not able to learn exactly when Defendant Giuliani learned

of which fact checks, what exactly he learned, and what he did (or did not do) with that

information; that is all evidence that would be highly probative of Defendant’s state of mind with

respect to the subsequent statements he made about Plaintiffs and which would permit Plaintiffs

to learn the identities of other individuals who likely discussed the same with him.

Second, Plaintiffs allege that Defendant Giuliani published his claims about Plaintiffs to

amplify a preconceived narrative of election fraud aimed at ensuring then-President Trump’s

continued tenure in office. ECF No. 22 ¶¶ 9, 24, 132. As such, every record evidencing his

motives and purpose in publishing claims about Plaintiffs is highly probative of Defendant

Giuliani’s state of mind.

Yet again, Defendant Giuliani has failed to produce evidence revealing his purpose in

publishing false claims about Plaintiffs, despite a clear record that such evidence existed. As

noted above, Defendant Giuliani failed to produce a December 7, 2020, text thread where then-

President Trump asked for the “greatest hits” of election fraud examples that didn’t “have to be

proven” but did have to be “super easy to explain,” and Defendant Giuliani responded by

identifying his claims about Plaintiffs. (Ex. 11.) Similarly, Defendant Giuliani failed to produce

an email produced by the January 6th Committee, making clear that he personally signed off on

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Trump Campaign ads depicting Plaintiffs and parroting Defendant Giuliani’s false claims about

Plaintiffs. ECF No. 56-7 at 3. Nor are Plaintiffs able to reconstruct the lost records through good

faith testimony from Defendant Giuliani. After learning of this last email (after Defendant’s

deposition), Plaintiffs propounded Requests for Admission to Defendant Giuliani asking him to

admit that he reviewed and consulted some or all of the Trump Campaign ads featuring Plaintiffs

prior to their airing, and that he provided information to the Campaign about Plaintiffs for the

purpose of that information being used in advertisements to undermine faith in the results of the

2020 Presidential election. (Ex. 12.) To all of those requests, Defendant Giuliani responded that

he “does not recall” whether he reviewed, consulted on, or provided information for Trump

Campaign ads. (Id.)

Third, Plaintiffs allege that Defendant Giuliani conspired with others to carry out his

campaign of defamation and intentional infliction of emotion distress, executing a written

“Strategic Communications Plan” that plotted to use Defendants’ false claims about Plaintiffs

and others as part of a “[n]ationwide communications outreach campaign” to undermine the 2020

election. ECF No. 22 ¶¶ 9–12, 57–64, 187–91. That plan specifically identified Defendant

Giuliani’s claims about Plaintiffs as key evidence. Id. As such, every record evidencing

Defendant Giuliani’s coordination with his team and his team’s amplification of false statements

about Plaintiffs is relevant to Plaintiffs’ claims.

Yet, Defendant Giuliani has failed to produce such records, despite clear indications that

such records existed. For example, Defendant Giuliani’s lead investigator, Bernard Kerik,

testified that Defendant Giuliani is a “very hands on” boss, and that during November and

December 2020 Defendant Giuliani was “in charge” and generally aware of everything Mr. Kerik

and the team did, and that Defendant Giuliani directed everything Mr. Kerik did or did not do.

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(Ex. 6 at 39:7–10; 65:14–22.) At his deposition, Mr. Kerik testified that Defendant Giuliani and

his team were engaged in “continual discussions” about the allegations in the team’s Strategic

Communications Plan for about “six weeks.” (Id. at 95:7–21.) And Mr. Kerik also tweeted out

a thread with screenshots of the Strategic Communications Plan, including a screenshot of the

Georgia section which specifically names Plaintiffs and repeats Defendant Giuliani’s false claims

about them. (Ex. 13.) Defendant Giuliani, for his part, testified that he “disagree[d] with a lot of

what [was] in” the Strategic Communications Plan, that he was opposed to the plan, and that he

didn’t think it was “worth spending the 5 to 8 million dollars” it would take to execute the plan.

(Ex. 4 at 250:14–20; 259:14–260:14.) He also testified that while Mr. Kerik knew Defendant

Giuliani was opposed to the plan, a lot of his communication about the plan was with Katherine

Friess. (Id. at 258:17–259:11.) As for Mr. Kerik’s tweet of the plan, Defendant Giuliani testified

that he’s “not sure” if he was aware of it, though it “sounds kind of familiar.” (Id. at 261:17–25.)

Yet, Defendant Giuliani has effectively not produced any records of his conversations about the

Strategic Communications Plan with anyone, including Bernard Kerik and Katherine Friess, and

Ms. Friess is (as noted above) nowhere to be found.

Fourth, Plaintiffs allege that Defendant Giuliani and his team were the first to publish

claims about Plaintiffs on December 3, 2020, showing a video of Plaintiffs to the world and

initiating their lies. ECF No. 22 ¶¶ 37–39. While Plaintiffs are not suing for defamation over

those initial publications, when Defendant Giuliani learned of the existence of the video, what

exactly he learned, and what he said of the video at the outset is highly probative of his state of

mind on December 3 and afterwards.

Yet, Plaintiffs still do not even know exactly when Defendant Giuliani first learned of the

video at the heart of this case, or what he learned about that video before he spoke about it in

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public. After this Court ordered Defendant Giuliani to supplement his interrogatory responses,

Defendant provided supplemental responses to Plaintiffs’ interrogatories number 3 and 5, noting

that “Defendant generally recalls that he was made aware of the existence of a video the night

before the [December 3, 2020,] hearing.” (Ex. 8.) Third-party discovery has revealed that Ray

Smith, a Georgia lawyer, obtained that video for the Giuliani team at around 1:00 a.m. on the

morning of December 3. (Ex. 9; Ex. 10 at 104:8–15.) Jacki Pick, the woman who first presented

the video of Plaintiffs to the world at the direction of Defendant Giuliani’s team, testified that

certain individuals working with Defendant Giuliani reviewed the video at Mr. Smith’s office in

Atlanta, but that Defendant Giuliani was not there and that he was not patched into any call about

the video. (Ex. 10. at 105:25–108:22.) Jacki Pick did not communicate with Defendant Giuliani

until the next morning, id. at 137:9–16, and Defendant Giuliani testified that he doesn’t recall any

conversations with Mr. Smith about Plaintiffs or the video. (Ex. 4 at 114:24–115:3.) Taken

together, then, someone must have communicated the video’s existence to Defendant Giuliani in

advance of the December 3, 2020 hearing, and presumably that person made certain

representations to Defendant Giuliani about what that video did or did not show. But Plaintiffs

have no record of that communication ever taking place or who was involved, let alone what

precisely was communicated to Defendant Giuliani including about what the video supposedly

showed or how little of the video Smith’s team had been able to review.

***

Unfortunately, as illustrated by the examples described above, Plaintiffs cannot accurately

assess the full scope of evidence that has been lost. Third-party discovery and testimony from

Defendant Giuliani (and others) suggest there should be a considerable amount of discoverable

evidence—at minimum, that evidence would allow Plaintiffs to document when Defendant

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Giuliani learned of key facts relevant to his statements about Plaintiffs. Defendant Giuliani has

admitted that evidence has been wiped and corrupted; and Plaintiffs have received, to date,

minimal documentary discovery. It is not fanciful to presume that Defendant Giuliani’s

numerous sent and received depositories contain concrete evidence acknowledging his lack of

foundation for his claims about Plaintiffs. Former Speaker of the Arizona House of

Representatives, Rusty Bowers, testified to Congress that Defendant Giuliani told him Defendant

Giuliani’s team “just d[idn’t] have the evidence of voter fraud” they alleged occurred in the 2020

election.4

Plaintiffs have also been further prejudiced by Defendant Giuliani’s failure to preserve

the Electronic Evidence in the time and resources expended in uncovering the truth about this

spoliation. Since at least December 21, 2022, Plaintiffs have spent hundreds, if not thousands of

hours, meeting and conferring with counsel for Defendant, briefing the Court, consulting with

discovery experts, and delaying other fact discovery, as a direct result of Defendant Giuliani’s

spoliation and piecemeal admittance of that spoliation. Supra at Relevant Factual Background.

On these facts, the record is clear that Plaintiffs have been severely prejudiced by Defendant’s

loss of relevant evidence.

E. Defendant Giuliani Intended Not To Take Reasonable Steps To Preserve The

Electronic Evidence.

The only explanation for why Defendant Giuliani failed to take any steps to preserve the

Electronic Evidence, let alone reasonable steps, is that he did so deliberately to deny Plaintiffs (and

4
See Ximena Bustillo, Arizona Lawmaker Rusty Bowers Details the Pressure Put on Him by
Trump and Giuliani, NPR (June 21, 2022), https://www.npr.org/2022/06/21/1106413341/arizona-
lawmaker-rusty-bowers-pressure-giuliani.

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the scores of other plaintiffs and government entities litigating and investigating his actions during

and after the 2020 Presidential Election) evidence that would be helpful to their case. A party

deliberately fails to fulfill its preservation obligations when, as Defendant Giuliani did here, it acts

“with the intent to deprive another party of the information’s use in litigation.” Fed. R. Civ. P.

37(e)(2); see, e.g., Mannina, 437 F. Supp. 3d at 14 (granting motion for sanctions on the basis of

negligence where party failed to issue litigation hold until three years into litigation, but did

otherwise request that documents be preserved); Beck v. Test Masters Educ. Servs., 289 F.R.D.

374, 378 (D.D.C. 2013) (noting that failure “to make any serious effort to recover the data” is

enough to demonstrate “a conscious disregard of [] preservation obligations.”); Vasser, 2017 WL

5634860, at *5–6 (granting motion for sanctions where defendants failed to preserve relevant

documents that plaintiffs repeatedly requested).

Defendant Giuliani told this Court that, as an experienced lawyer, he understands his

obligations to take reasonable steps to preserve evidence: “I have been doing this for 50 years; I

understand the obligations.” (Ex. 2 at 68:5–6.) It is hardly a leap from that concession to infer

that Defendant Giuliani also understands what is required to satisfy such obligations.

Understanding one’s obligations yet choosing not to fulfill them is textbook willfulness.

WILLFULNESS, Black’s Law Dictionary (11th ed. 2019) (“The voluntary, intentional violation

or disregard of a known legal duty.”) Plaintiffs also specifically asked counsel for Defendant on

both December 21, 2022 and February 6, 2023 whether Defendant Giuliani had fulfilled his

preservation obligations. Plaintiffs also moved to compel Defendant to confirm that he had

fulfilled his preservation obligations on April 17, 2023 and the Court ordered him to do so on May

19, 2023. Despite all of this, Defendant Giuliani failed to take any reasonable preservation steps—

even today, he has not taken any. This Court has more than sufficient evidence to conclude that

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Defendant Giuliani’s years-long failure, in light of his personal knowledge of his obligations and

reminders from Plaintiffs and the Court, has been intentional. See, e.g., Vasser, 2017 WL 5634860,

at *6 (ordering sanctions for spoliation where defendant “not only knew or should have known

that these documents were relevant, it knew the Plaintiff had requested them (and ha[d] done so at

every stage of this litigation), yet it failed to preserve them”) (emphasis added).

F. The Court Should Order Sanctions.

1. The Court should order default judgment against Defendant Giuliani on

liability.

Although default judgment is the most severe sanction available, Plaintiffs respectfully

submit that a default judgment on liability is warranted on these egregious facts. The D.C. Circuit

Court of Appeals has outlined “three basic justifications [to] support the use of dismissal or default

judgment as a sanction for misconduct,” any one of which alone can be the basis for entering

default judgment. Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998). Here, at

least two of those three justifications apply and therefore warrant default judgment as to Defendant

Giuliani’s liability: (1) Defendant Giuliani’s “behavior has severely hampered” Plaintiffs’ ability

to present their case as to actual malice, and (2) Defendant Giuliani’s conduct, particularly as a

barred attorney, “is disrespectful to the court.” Id.5

5
Default judgment could also be an appropriate sanction here as Defendant Giuliani’s delay tactics
have not only required Plaintiffs to seek case extensions both past and anticipated, but this Court
has already had to schedule three discovery hearings to address various disputes, many of which
have stemmed from said delay tactics. In spite of the multitudinous hearings and Court orders,
Defendant Giuliani has transparently flouted his discovery obligations at every turn. A default
judgment on liability would therefore also be appropriate due to the degree to which Defendant
Giuliani’s spoliation has stalled discovery and consumed Court resources. See U.S. Bank Nat’l
Ass’n v. Poblete, No. CV 15-312 (BAH), 2017 WL 598471, at *6 (D.D.C. Feb. 14, 2017) (finding
the second element met where “[defendant’s] failure to respond to discovery and penchant for
instead filing irrelevant documents with the Court has stalled this litigation”); Guarantee Co. of N.
Am. USA, 2021 WL 2036666, at *4 (finding the second element met and noting that “[t]ime and
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First, as discussed supra, Defendant Giuliani’s deliberate failure to preserve his electronic

evidence has severely hampered Plaintiffs’ ability to fully present their case as to liability. Given

that Defendant Giuliani plainly made false and defamatory statements regarding Plaintiffs, the

crux of Plaintiffs’ case is likely to be whether Defendant Giuliani knew the statements were false

or recklessly disregarded their falsity. Plaintiffs are therefore entitled to a default judgment on

liability because of Defendant Giuliani’s spoliation and blatant disregard for his discovery

obligations, including with respect to evidence of his state of mind. See Guarantee Co. of N. Am.

USA, 2021 WL 2036666, at *4 (entering default judgment where “Defendants’ wholesale failure

to comply with their discovery obligations and participate in this litigation . . . made it all but

impossible for Plaintiff to present its case”).

Second, and similarly, Defendant Giuliani—despite being an attorney for over 50 years

and barred in this District—has disrespected this Court by knowingly ignoring his discovery

obligations. See U.S. Bank Nat’l Ass’n v. Poblete, No. CV 15-312 (BAH), 2017 WL 598471, at

*6 (D.D.C. Feb. 14, 2017) (finding third element met where defendant “demonstrated utter

disrespect for the Court’s deadlines and a need to deter further noncompliance” by employing

tactics “plainly intended to do nothing more than delay the resolution of this matter”).6 And

resources the Court has had to spend on Defendants’ contumaciousness can never be recovered
and applied toward resolving other matters”).
6
Certain district courts within this Circuit, as well as other circuits, have determined that the three-
factor test set forth in Section F.2 inrfa also applies with respect to default judgment sanctions.
See Borum, 332 F.R.D. at 44 (applying the three-factor test and noting that “[a]vailable sanctions
include default judgment, fines, and awards of attorneys’ fees and expenses, among others”);
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521 (D. Md. 2010) (observing that, in
addition to the Fourth Circuit, “District courts in the Second, Fifth, Sixth, Seventh, and Ninth
Circuits have identified the same factors for sanction-worthy spoliation”), aff’d in part, modified
in part, No. CV MJG-06-2662, 2010 WL 11747756 (D. Md. Nov. 1, 2010).

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Defendant Giuliani’s disrespect for this Court evidences a need to deter future misconduct

particularly because Defendant Giuliani is currently litigating several cases with “pending requests

for discovery.” (Ex. 7 at 22:6–12.) Issuing the most severe of sanctions here may dissuade

Defendant Giuliani from employing the same unlawful tactics in his other pending cases.

2. The Court should order adverse inferences against Defendant Giuliani.

Short of entering default judgment on liability, the Court should enter adverse inferences

against Defendant Giuliani. Adverse inferences are appropriate where, as here, Plaintiffs have

shown that (1) Defendant Giuliani had control over the Electronic Evidence and had an obligation

to preserve it; (2) the failure to preserve was accompanied by a culpable state of mind; and (3)

the evidence that was destroyed or altered was relevant to Plaintiffs’ claims. See Zhi Chen v.

District of Columbia., 839 F. Supp. 2d 7, 13 (D.D.C. 2011) (ordering adverse inferences where

defendant was plainly aware of duty to preserve video evidence and failed to do so).

First, Defendant Giuliani plainly had possession, custody, or control over the Electronic

Evidence such that he could have preserved it at some time since Plaintiffs filed suit. Of the

Electronic Evidence, Plaintiffs understand that Defendant Giuliani has always had control of: his

three personal email accounts, his iCloud account, his three phone numbers, his three messaging

applications, his five social media handles, and two devices. Plaintiffs understand that seven of

Defendant Giuliani’s Devices were seized in April 2021 and returned no later than August 2022—

just three months after Plaintiffs first served discovery in this case. See ECF No. 44-5. And

Defendant Giuliani has admitted that he had an obligation to preserve the Electronic Evidence

For the same reasons set forth in Section F.2, an entry of default as to liability is appropriate
applying the three-factor test: (1) Defendant Giuliani clearly had possession, custody, or control
of the spoliated evidence; (2) Defendant Giuliani deliberately spoliated the evidence (i.e., with a
culpable state of mind); and (3) the evidence was highly relevant to Plaintiffs’ claims.

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prior to Plaintiffs’ ever filing suit. ECF No. 60 ¶ 2 (acknowledging “receiving notice of potential

litigation issues surrounding my involvement in contesting the 2020 Election in late 2020 or early

2021” triggering preservation obligations).

Second, as already discussed at length, see supra at pp. 17–19, 30–31, Defendant Giuliani

acted with a culpable state of mind by failing to preserve the Electronic Evidence in light of

Plaintiffs’ repeated requests and his own professional knowledge. See Vasser, 2017 WL

5634860, at *6.

Third, the Electronic Evidence was relevant. While the inquiry of whether unpreserved

documents were relevant is “unavoidably imperfect,” here the evidence Plaintiffs have obtained

from third-parties clearly demonstrates that the Electronic Evidence Defendant Giuliani failed to

preserve was highly relevant to Plaintiffs’ claims for defamation, IIED, and conspiracy. Id.

(explaining that the court may draw an inference of relevance based on a very slight showing that

the documents are relevant). See supra at pp. 6–9, 17.

Therefore, if this Court is not inclined to enter default judgment, it should order the following

adverse inferences against Defendant:

1. Defendant Giuliani spoliated significant relevant evidence contained on his personal and
professional devices and personal and professional accounts.

2. Prior to December 23, 2020, Defendant Giuliani acted with reckless disregard for the truth
by avoiding and ignoring, or knew and understood, the falsity of the following statements:
(1) Ruby Freeman has a criminal history; (2) Ruby Freeman and/or Shaye Moss excluded
election observers from State Farm Arena under false pretenses, including but not limited
to, because of a fake water leak; (3) Ruby Freeman and/or Shaye Moss locked the doors to
State Farm Arena to keep election observers out; (4) Ruby Freeman and/or Shaye Moss
passed each other a USB drive to illegally manipulate the vote count; (5) Ruby Freeman
and/or Shaye Moss counted ballots multiple times; (6) Ruby Freeman and/or Shaye Moss
hid suitcases of illegal ballots; (7) Ruby Freeman and/or Shaye Moss engaged in voter
fraud (together, the “Defamatory Claims”).

3. Prior to December 23, 2020, Defendant Giuliani acted with reckless disregard for the truth
by avoiding and ignoring, or knew and understood, that Georgia and federal officials had
investigated and disproved the Defamatory Claims (with the exception of the claims

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regarding USB drives), because the investigations and their findings were: (1) widely
published and reported on, (2) sent to Defendant Giuliani, (3) freely and easily accessible
to any member of the public, and (4) directly relevant to the Defamatory Claims.

4. Defendant Giuliani acted with reckless disregard for the truth by avoiding and ignoring, or
knew and understood, that the Defamatory Claims were false because: (1) Defendant
Giuliani and his team had consciously avoided investigating the purported basis for the
Defamatory claims; (2) Defendant Giuliani and his team had no credible evidence or
sources supporting the Defamatory Claims; and (3) Defendant Giuliani and his team
pursued the Defamatory Claims based on political and public relations objectives rather
than a belief that the Defamatory Claims were truthful in fact.

5. Defendant Giuliani published and spread the Defamatory Claims for his personal benefit,
including his political, professional, and financial interests.

6. Defendant Giuliani knew his actions would cause Plaintiffs emotional distress and
nonetheless intentionally and recklessly proceeded.

7. Defendant Giuliani made an agreement with his then-client, President Donald Trump,
along with other individuals working for or volunteering with President Trump and his
campaign, to publish the Defamatory Claims.

8. Before publishing the Defamatory Claims, Defendant Giuliani knew that each
Defamatory Claim he made on his podcasts, his radio show, during interviews with One
America News Network, on Twitter, and through other mediums, could potentially be
heard by tens of millions of individuals, and intended his Defamatory Claims to be heard
by as many people as possible.

3. The Court should preclude Defendant Giuliani from relying on any of

the unpreserved electronic evidence.

If this Court does not enter default judgment, the Court should, along with the adverse

inferences discussed earlier, preclude Defendant from relying on any of the Electronic

Evidence—he failed to preserve and produce this evidence and therefore he should be precluded

from using it to his benefit. Courts in this District order preclusion where one party’s conduct

has prejudiced the other party’s ability to litigate its case. See, e.g., Klayman v. Judicial Watch,

256 F.R.D. 258 (D.D.C. 2009) (precluding plaintiff, an experienced lawyer representing himself

pro se, from testifying to or admitting any evidence in support of his damage claims or his alleged

defenses to defendants’ counterclaims where he had failed produce significant documentary

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evidence and prejudiced the judicial system by failing to comply with court orders regarding

discovery); United States v. Philip Morris USA, Inc., 327 F. Supp. 2d 21, 25 (D.D.C. 2004)

(precluding defendant from calling as fact or expert witnesses at trial any individual who has

failed to comply with its internal data retention program). As already demonstrated, Defendant

Giuliani’s failure to preserve has significantly prejudiced Plaintiffs such that preclusion is

appropriate here.

Specifically, the Court should order that Defendant is prohibited from:

1. arguing, in summary judgment, at trial, or otherwise, that anything contained in the

Electronic Evidence ever existed or would have supported his defense,

2. offering evidence, in summary judgment, at trial, or otherwise, about the contents of the
Electronic Evidence, and

3. arguing, in summary judgment, at trial, or otherwise, the reach of the Defamatory Claims,
including, but not limited to, the number of impressions, views, or clicks estimated by
Plaintiffs’ damages expert.7

G. In the Alternative, the Court Could Order Defendant Giuliani to Produce His
Devices to Plaintiffs

Should the Court conclude that adverse inferences or default judgment are not yet

warranted, as an interim step (or in conjunction with any of the sanctions described above), the

Court should compel Defendant Giuliani to make all his devices and accounts available for

collection and inspection by Plaintiffs’ vendors, at Defendant Giuliani’s expense. The Court

should permit Plaintiffs’ discovery vendor to determine whether any evidence was lost and then

permit Plaintiffs to renew a motion for sanctions.

7
If the Court declines to preclude Defendant Giuliani from disputing the number of impressions
estimated by Plaintiffs’ expert, Plaintiffs request that the Court permit Plaintiffs to instead submit
an adverse inference based on Plaintiffs’ expert’s report at a later date.

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Plaintiffs note that any order along these lines will necessitate a significant delay in this

litigation, prejudicing Plaintiffs ability to move this case to resolution expeditiously. Fact

discovery has closed; the time for Defendant to have carried his discovery obligations is long past.

Undertaking a full forensic review of Defendant Giuliani’s devices at this point would delay this

litigation by many months, at minimum. Accordingly, rather than effectively re-open and

dramatically extend fact discovery, Plaintiffs respectfully submit that the more appropriate course

in these circumstances is to award Plaintiffs the alternative relief delineated above.

II. THE COURT SHOULD AWARD PLAINTIFFS’ FEES AND COSTS.

The Court should award Plaintiffs’ fees and costs. The Court may impose monetary

sanctions pursuant to Rule 37(e)(1). See Doe, 2023 WL 3558038, at *16 (awarding attorneys’ fees

and costs for Rule 37(e) motion); see also Zhi Chen, 839 F. Supp. 2d at 16 (same). Defendant

Giuliani’s obstructive and bad-faith approach to discovery necessitated this Motion, and therefore

should be required to cover the cost of the reasonable attorneys’ fees and costs associated with

bringing this motion. See Zhi Chen, 839 F. Supp. 2d at 16–17 (explaining that an “award of fees

and costs serves the remedial purpose of compensating” the movant “for the reasonable costs it

incurred in bringing” the motion for sanctions) (internal quotations omitted).

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DATED: July 11, 2023

/s/ Michael J. Gottlieb

UNITED TO PROTECT DEMOCRACY WILLKIE FARR & GALLAGHER
John Langford LLP
Rachel Goodman Michael J. Gottlieb (974960)
82 Nassau Street, #601 Meryl C. Governski (1023549)
New York, NY 10038 Timothy P. Ryan (1719055)
Tel: (202) 579-4582 J. Tyler Knoblett (1672514)
[email protected] 1875 K Street NW
[email protected] Washington, DC 20006
Tel: (202) 303-1000
Christine Kwon* Fax: (202) 303-2000
555 W. 5th St. [email protected]
Los Angeles, CA 90013 [email protected]
Tel: (919) 619-9819 [email protected]
[email protected] [email protected]

Sara Chimene-Weiss* WILLKIE FARR & GALLAGHER LLP

7000 N. 16th St. Ste. 120, #430 M. Annie Houghton-Larsen
Phoenix, AZ 85020 787 7th Avenue
Tel: (202) 579-4582 New York, New York
[email protected] Tel: (212) 728-8164
Fax: (212) 728-9164
Brittany Williams** [email protected]
15 Main St., Suite 312
Watertown, MA 02472
Tel: (202) 579-4582
[email protected]

DUBOSE MILLER LLC

Von A. DuBose
75 14th Street NE
Suite 2110
Atlanta, GA 30309
Tel: (404) 720-8111
[email protected]

*admitted pro hac vice

** Pro hac vice application forthcoming

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Attorneys for Plaintiffs Ruby Freeman and

Wandrea’ Moss

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CERTIFICATE OF SERVICE

I hereby certify that on July 11, 2023, the foregoing document was filed with the Clerk of the Court

of the U.S. District Court for the District of Columbia by using the CM/ECF system, which will

automatically generate and serve notices of this filing to all counsel of record.

Dated: July 11, 2023

/s/ Michael J. Gottlieb

WILLKIE FARR & GALLAGHER LLP
Michael J. Gottlieb (974960)
1875 K Street, #100
Washington, DC 20006
Tel: (202) 303-1000
Fax: (202) 303-2000
[email protected]