We have all seen those movies where people are frantically running papers through a shredder to destroy a “paper trail.” We normally associate that with criminal activity. Lawyers, though, immediately relate that to the rules of evidence because once there is even a threat of litigation, you are under a duty to keep potential evidence from being destroyed.
Once any litigation starts (civil or criminal), the first step in preparing for trial is to find out what the side has in terms of physical documents. If materials are not voluntarily turned over to the other side, as the prosecutor typically does for a defendant in a criminal matter, you can get access to documents by “discovery.” A paper is filed with the court, asking the other side to produce a variety of records that you believe are relevant to the case.
The other side may ask to limit the request if seems too all-encompassing, but they will ultimately turn appropriate material over or face penalties if they refuse. Yes, some of the material turned over may be harmful to one’s case, but the entire purpose of discovery is to make sure that the trial is based on all the facts.
So what happens if someone does not turn over those documents? The impacts increase in severity. First, the court will ask you politely to comply. Second, the court will tell you firmly to comply. Third, the court will impose financial penalties, including attorney’s fees. Fourth, the court may completely hammer your case: as a plaintiff, dismissing the case entirely; as a defendant, enter a judgment against you without even going to trial.
Today, Rudy Guiliani got the hammer. Guiliani had been sued by two election workers in Georgia, claiming that they had been defamed by his comments. These plaintiffs repeatedly asked for documents, and even after a number of court proceedings, little was produced. Even the award of damages and attorney’s fees (which still have not been paid) had no effect. The judge had no alternative but to proceed to the next stage.
The judge’s 57-page order noted that Guiliani did not claim ignorance of the rules of evidence, having stated in Court that “he ‘understand[s] the obligations’ because he has ‘been doing this for 50 years’.” Guiliani’s total course of conduct, according to the judge, “demonstrated utter disregard for the court’s deadlines by employing tactics plainly intended to do nothing more than delay the resolution of this matter.”
The judge, having exhausted every other means to get compliance, entered a default judgment against Guiliani, effectively finding that he did indeed defame the election workers. A jury will still meet, however, with the limited job of deciding how much Guiliani will owe the plaintiffs in punitive damages.
As part of the jury instructions, the judge said that the jury will be instructed “that they must, when determining an appropriate sum of punitive damages, infer that Guiliani is intentionally trying to hide relevant discovery about his financial assets for the purpose of artificially deflating his net worth.”
When the fines, attorney’s fees and punitive damages are added together, this will be a most expensive case. The failure to comply with the discovery rules also made it almost completely avoidable.
Note: this post was written to show the importance of complying with the rules of discovery. A number of components of this particular case have been omitted for purposes of clarity.