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.