Replies

Here’s what the court is demanding:

MINUTE ORDER (paperless) DIRECTING defendant Giuliani to CLARIFY his [84-2] "Nolo Contendre [sic] Stipulation" ("Giuliani Stipulation"), submitted in response to plaintiffs' 81 Motion for Discovery Sanctions Against Defendant Rudolph Giuliani For Failure to Preserve Electronic Evidence ("Pls.' Motion"), which unsworn stipulation signed by defendant Giuliani contests no part of plaintiffs' motion but rather purports to set out concessions sufficient to avoid further discovery demands and the risk of concomitant sanctions for failure to comply with discovery obligations, under Federal Rules of Civil Procedure 26 through 37, but simultaneously contains multiple caveats and limitations undercutting that purpose. For example, the Giuliani Stipulation concedes: 1. that defendant Giuliani "made the statements of and concerning Plaintiffs, which include all of the statements detailed in Plaintiffs['] [sic] Amended Complaint, ECF No. 22 at 57-101," 2. "that the statements carry meaning that is defamatory per se," 3. that defendant Giuliani "published those statements to third parties," 4. "that, to the extent the statements were statement of fact and otherwise actionable, such actionable factual statements were false[,]" and 5. that defendant Giuliani "does not contest... the factual elements of liability (subject to any retained affirmative defenses not expressly waived herein) regarding Plaintiffs' claim for intentional infliction of emotional distress and other related tort claims." Giuliani Stip. 1-4. Yet, these concessions appear to be significantly limited with caveats that the Giuliani Stipulation: 1. is made only "for the purposes of this litigation before this Court and on Appeal," id. 1; see also id. 2-4; 2. "does not affect... his argument that his statements are constitutionally protected statements or opinions or [that plaintiffs' claims are barred by] any applicable statute of limitations," id. 3, 4, despite denial of defendant Giuliani's 26 Motion to Dismiss plaintiffs' complaint on these same grounds, in which motion plaintiffs' allegations were legally required to be assumed as true, see generally Freeman v. Giuliani, Civ. No. 21-3354 (BAH), 2022 U.S. Dist. LEXIS 197768 (D.D.C. Oct. 31, 2022), leaving no room for continued viability of such defenses, let alone reservation of such defenses, if plaintiffs' allegations are conceded as true, as the Giuliani Stipulation purports to do; 3. is "subject to any retained affirmative defenses not expressly waived herein," Giuliani Stip. 4, which affirmative defenses may include any one of the six such defenses asserted in Def.'s 33 Answer 193-198, that may provide a complete defense to liability and were not "expressly waived" in the Giuliani Stipulation; 4. "does not affect Giuliani's ability to seek setoff, offset or settlement credit, or that Giuliani's conduct, in fact, caused Plaintiffs any damages, and the amount of any alleged damages Giuliani's conduct may have caused," Giuliani Stip. 4; and 5. "does not affect Giuliani's argument [as to] any other legal defense not expressly waived by this Stipulation," id., which may allude to the six affirmative defenses asserted in Def.'s 33 Answer 193-198, or other unspecified defenses. Given the seemingly incongruous and certainly puzzling caveats contained in the Giuliani Stipulation, plaintiffs' counsel recounts efforts to obtain clarification from defendant Giuliani's counsel, see Pls.' 86 Reply Supp. Mot. For Discovery Sanctions Ag. Def. Giuliani For Failure to Preserve Electronic Evid., at 3-5 (recounting defense counsel's confirmation to plaintiffs' counsel that defendant Giuliani (1) stipulates to all elements of plaintiffs' claims for defamation, intentional infliction of emotional distress, and civil conspiracy; and (2) "would 'not contest willfulness for purposes of punitive damages'"), but no such clarification has been submitted directly to the Court by defendant Giuliani or otherwise acknowledged by defendant Giuliani.Accordingly, for the above reasons, defendant Giuliani is DIRECTED, by August 8, 2023 at 4:00 PM, to submit to the Court either: (a) a superseding stipulation in which he(i) concedes, for purposes of this litigation, all factual allegations in plaintiffs' 22 Amended Complaint as to his liability for plaintiffs' defamation, intentional infliction of emotional distress, and civil conspiracy claims, and his liability as to plaintiffs' claim for punitive damages, see U.S. Sec. & Exch. Comm'n v. China Infrastructure Inv. Corp., 189 F. Supp. 3d 118, 128 (D.D.C. 2016) (Howell, C.J.) (noting that "[a] defaulting defendant concedes all well-pleaded factual allegations as to liability, though the court may require additional evidence concerning damages") (quoting Al-Quraan v. 4115 8th St. NW, LLC1, 123 F. Supp. 3d 1, 1 (D.D.C. 2015)); and (ii) concedes that entry of default judgment on liability is appropriate in this case, see Adkins v. Teseo, 180 F. Supp. 2d 15, 1718 (D.D.C. 2001) (entering default judgment after finding that plaintiffs "satisfied each element" of the pleaded cause of action); or (b) an explanation for declining to submit the superseding stipulation described in paragraph (a), above, that also provides clarification as to what precisely his original stipulation conceded regarding the plaintiffs' factual allegations and legal claims. Should defendant Giuliani not file the superseding stipulation described in paragraph (a), above, the parties are DIRECTED to appear in Courtroom 26A on August 15, 2023 at 11:00 AM for a hearing on both plaintiffs' 81 Motion, and the status of defendant Giuliani's compliance with the Court's May 31, 2023 Minute Order ("May Order") (as amended by the June 16, 2023 Minute Order), directing him to "search and produce all materials responsive to plaintiffs' RFPs... within the date ranges agreed to by the parties, with the assistance of a professional vendor." Signed by Judge Beryl A. Howell on August 4, 2023. (lcbah4) Modified on 8/7/2023 (zmac).