Defamation / Reputation
Afanasyev v. Zlotnikov
Russian Federation
Closed Mixed Outcome
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A U.S. District Court entered a default judgment against Rudolph W. Giuliani, President Trump’s former attorney, holding him liable for defaming election workers during the 2020 election. Giuliani had accused the election workers of election fraud, claims which were widely disseminated on social media, news networks, and even on his podcast. Despite Georgia election officials publicly debunking the claims with a detailed explanation, the election workers experienced sustained racist abuse, threats and harassment. The Court held that Giuliani had not complied with his discovery obligations as he had failed to preserve and provide the workers with the relevant requested documents. The Court further noted that he had acted in bad faith throughout the proceedings, producing only “blobs of indecipherable data” and engaging in what the Court described as “only lip service” to the judicial process.
On November 3, 2020, the day of the American Presidential Election, two women, Ruby Freeman and her daughter Wandrea “Shaye” Moss, were working as temporary election workers in Fulton County, in the U.S. state of Georgia. On December 3, 2020, then-President Donald Trump’s attorney Rudolph W. Giuliani publicly accused Freeman and Moss of engaging in election fraud. Giuliani claimed that Freeman and Moss had been “counting the same ballots multiple times in order to swing the results of the election,” that they had “surreptitiously” passed around unauthorized flash drives, and that they were involved in what he called the “crime of the century.” [para 4, complaint]
Later that same day, the Trump campaign released a video showing Freeman and Moss counting ballots, which Giuliani and the campaign used to strengthen their accusations that the two women had engaged in illegal ballot counting. Giuliani repeatedly shared the clip on social media and urged his followers to view it. These claims were quickly picked up by One America News Network (OAN) which amplified Giuliani’s assertions. Soon after, Georgia election officials publicly debunked the claims with a detailed explanation denying election fraud. [para 9, complaint] However, on December 10, 2021, Giuliani returned to OAN and repeated his claims.
On December 23, 2020, during his podcast “Rudy Giuliani’s Common Sense”, Giuliani claimed that Freeman had “a history of voter fraud participation”. [para 91, complaint]. He repeated these same statements during subsequent episodes of his podcast and in interviews with other people.
Freeman and Moss were immediately subjected to a wave of racist abuse, threats, and harassment. On the advice of law enforcement, Freeman had to flee her home and could not return for two months. On January 6, 2021, during the attack on the U.S Capitol by protesters challenging the election of President Joe Biden, a mob showed up outside her house. Moss faced repeated intrusions, including two instances where strangers attempted to force their way into her grandmother’s home to make a “citizen’s arrest.” [para 14, complaint]
On December 23, 2021, Freeman and Moss filed a defamation suit against OAN and its officials (later withdrawn after settlement) and Giuliani. They argued that Giuliani spread false and defamatory statements of them being involved in election fraud and illegally counting ballots multiple times. They submitted that due to these false statements they became “objects of vitriol, threats, and harassment” which significantly impacted their personal and professional lives. [para 3, complaint]
During the proceedings, Freeman and Moss filed two motions compelling discovery (the legal process through which parties obtain documents from the other parties in a lawsuit) from Giuliani and his businesses. Despite multiple hearings, multiple orders seeking compliance and several extensions granted by the Court, Giuliani failed to provide required documents to Freeman and Moss.
Judge Beryl A. Howell of the US District Court for the District of Columbia delivered this opinion. The main issue for consideration was whether Giuliani had complied with his discovery obligations and if a default judgment should be granted holding him liable for defamation.
Freeman and Moss argued that Giuliani failed to preserve electronically stored information (ESI). They argued that “they have been severely prejudiced by Giuliani’s failure to preserve his ESI by hampering their ‘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 defamatory claims’.” [p. 35] They submitted that Giuliani failed to provide them with the requested documents and pay their attorneys’ fees as required by the Court’s previous orders.
Giuliani argued that there was a lack of clarity regarding the scope of documents that were required to be produced and indicated that he intended to file a motion to defer payment of fees to Freeman and Moss until the case was resolved as he faced financial difficulties.
The Court noted Giuliani’s deliberate attempts to withhold evidence from Freeman and Moss that would help their case.
The Court found that Giuliani failed to fulfil his obligations under Rules 26 and 37 of Federal Rules of Civil Procedure. Rule 26 outlines the duty to disclose information and governs general provisions for discovery, including initial disclosures and the need for periodic updates. Rule 37 deals with sanctions for failing to make disclosures or cooperate in discovery, and it allows parties to move for an order compelling disclosure or discovery.
The Court described Giuliani as “a sophisticated litigant” and noted that he had admitted that he anticipated litigation over his election fraud claims, yet he did not take sufficient steps to preserve ESI beyond turning off auto-delete on some devices. [p. 30] The Court found that Freeman and Moss were prejudiced by Giuliani’s failure to preserve ESI and referred one of the earlier cases, Freeman v. Giuliani, No. 21-cv-3354 (2022), and reiterated that if Freeman were deemed a “limited-purpose public figure”, as Giuliani argued, Freeman and Moss would need to show that his defamatory statements were made with “actual malice” – that is “with knowledge that it was false or with reckless disregard of whether it was false or not.” [p. 35] The Court noted that without access to Giuliani’s messages, emails and other records from the time statements were made, Freeman and Moss would be unable to challenge Giuliani’s arguments that his statements were made merely negligently, rather than with actual malice or an “awareness of falsehood”. [p. 35]
The Court noted that Freeman and Moss obtained key documents and communications from discovery obtained from third parties, rather than through Giuliani’s own production, highlighting his failure to meet his discovery obligations. This included a text thread between Giuliani, a 2020 Trump Campaign advisor and others regarding the need for “best examples of ‘election fraud’,” and an email from a Fox News reporter to Giuliani seeking comment when his claims about Freeman and Moss were debunked by Georgia officials. [p. 37]
The Court found that “Giuliani refused to comply with his discovery obligations and this Court’s orders” by not providing relevant ESI and other routine financial documents required by Freeman and Moss to proceed with their defamation claim, claims for punitive damage and reimbursement of attorney’s fees. [p. 2] The Court noted that, aside from initially producing some documents to Freeman and Moss, Giuliani later provided only a “single page of communications, blobs of indecipherable data,” [p. 3] which amounted to “only lip service” to his discovery obligations, accompanied by “excuses designed to shroud the insufficiency of his discovery compliance.” [p. 2]
Though the Court granted Giuliani multiple extensions and opportunities to comply, he failed to do so. The Court suggested “perhaps, he has made the calculation that his overall litigation risks are minimized by not complying with his discovery obligations in this case”. [p. 4] After reviewing Giuliani’s actions the Court found that his intent was “to bypass the discovery process and a merits trial.” [p. 5]
The Court noted that rather than “simply play by the rules…….to reach a fair decision…”, Giuliani “bemoaned” Freeman and Moss’s attempts to enforce compliance, characterizing them as “punishment by process.” [p. 2] After reviewing Giuliani’s actions the Court stated that “donning a cloak of victimization may play well on a public stage to certain audiences, but in a court of law this performance has served only to subvert the normal process of discovery in a straight-forward defamation case, with the concomitant necessity of repeated court intervention”. [p. 2]
The Court referred to the case of Webb v District of Columbia where three conditions were set out to enter a default judgment for failure to comply with discovery obligations: prejudice caused to the party due to misconduct of the other party, prejudice caused to the judicial system, and disrespectful conduct towards the court requiring deterrence of similar misconduct. The Court found these conditions satisfied in the present case as Giuliani failed to preserve relevant ESI and provide any meaningful discovery forcing Freeman and Moss to wade “through thousands of pages of gibberish”. [p. 44] The Court found that Giuliani wasted “judicial resources to assess and ensure compliance with the most basic of discovery obligations, including consideration of two discovery motions, two discovery hearings, close monitoring of progress……” [p. 45]
Accordingly, the Court entered a default judgment holding Giuliani civilly liable for defamation, intentional infliction of emotional distress, civil conspiracy, and punitive damages. The Court ordered Giuliani to reimburse Freeman and Moss US$89,172.50 for attorneys’ fees and costs related to their first motion to compel discovery. Additionally, it directed the Giuliani Businesses to pay US$43,684 in attorneys’ fees associated with the successful motion to compel discovery from the businesses and directed Giuliani and his businesses to provide financial and other documents to Freeman and Ross that would help them prepare for trial on compensatory and punitive damages.
On December 15, 2023, a separate trial to determine damages was held and jury awarded Freeman and Moss over US$148 million in damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the decision constituted a limitation of Giuliani’s expression, the Court noted that he had acted in bad faith throughout the proceedings, repeatedly refusing to comply with discovery obligations and orders, producing only “blobs of indecipherable data” and engaging in what the Court described as “only lip service” to the judicial process.
This case has far-reaching implications for disinformation campaigns, especially those targeting election integrity, signaling that courts may be increasingly willing to hold public figures accountable when false political speech causes real-world harm.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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