File Photo by: zz/John Nacion/STAR MAX/IPx 2022 9/9/22 Rudy Giuliani is interviewed on September 9, 2022, about the September 11th, 2001 (9/11/01) terror attacks in New York City.
Lawyers for a voting machine company suing Rudy Giuliani, Fox News, and others over false statements made after the 2020 presidential election say that the former mayor has repeatedly failed to participate in the case — and that “enough is enough.”
Voting technology firm Smartmatic is seeking sanctions against Giuliani over the ongoing delay amid orders compelling him to cooperate by providing non-privileged documents as part of the discovery process. Smartmatic detailed Giuliani’s apparent recalcitrance in a motion filed in New York state court Monday.
“‘The dog ate my homework.’ ‘I have to wash my hair.’ ‘I can’t go out, I’m sick,’” the motion begins. “Since the dawn of time, people have made up excuses to avoid doing things they do not want to do. This is exactly what Giuliani has done here.”
Smartmatic says that Giuliani has spent months making up excuses to get out of his discovery obligations, violating court orders in the process.
“To date, Giuliani has not produced a single non-public document responsive to the discovery requests Smartmatic issued fourteen months ago,” the motion says. “Giuliani and his counsel must be held accountable for their repeated and blatant delay tactics and misrepresentations. Smartmatic’s patience should not be punished with further delay and excuses. Enough is enough.”
Giuliani has “engaged in a pattern of delay and obstruction perhaps unprecedented before this Court,” the filing says, challenging the defendant to “identify any instance where a party has failed to produce a single, non-public responsive document over the course of fourteen months of discovery.”
Noting that Smartmatic itself has produced nearly 11 million pages of responsive documents in discovery, the plaintiff reminds the court that “Smartmatic is the victim here.”
“Smartmatic is the one that Giuliani publicly and repeatedly defamed,” the motion continues. “The wrongdoer is again engaged in wrongdoing. Giuliani and his counsel should not be allowed to get away with this behavior.”
According to Smartmatic, Giuliani’s stalling tactics are nothing more than lies.
“Smartmatic could see the lie loud and clear,” the motion says (citations omitted). “Giuliani and his counsel would promise to produce documents, promise it would be done by a date certain, and then fail to meet that commitment. Immediately after failing to meet the production deadline, Giuliani and his counsel would concoct a new (or repeat an old) excuse for failing to produce documents. Recognizing this now familiar pattern, Smartmatic gave Giuliani one last chance to produce documents by August 7, 2023. Giuliani, of course, missed this deadline too.”
According to Smartmatic, “it has been difficult to keep up with Giuliani’s ever-changing position — throughout discovery he has alternatively refused to produce any documents; agreed to produce some documents; or claimed he cannot afford to produce documents,” the filing also says. “Making matters worse, Giuliani has largely evaded Smartmatic’s questions about what sources of information he has searched and what sources he has access to and when.”
Lawyers say that Giuliani’s participation in the case is key to its claim against Fox News.
“Giuliani’s delay impacts Smartmatic’s ability to pursue its case against the Fox Defendants because Giuliani is one of the two primary sources, if only sources, that the Fox Defendants have identified in support of what it published about Smartmatic,” the motion says (citations omitted). “Giuliani’s lack of credibility — and the obvious reasons to doubt Giuliani’s credibility — establishes actual malice as to the Fox Defendants. Smartmatic needs Giuliani’s documents to further one of its key theories of liability against the Fox Defendants (reliance on an obviously unreliable source) and to confirm that the Fox Defendants have produced everything they have related to Giuliani.”
Smartmatic’s motion suggests in a footnote that it should win its case by default.
“Giuliani has not even answered Smartmatic’s First Amended Complaint, filed in March 2023,” the filing says. “Combined with his failure to comply with discovery obligations, Giuliani’s failure to answer indicates that he does not intend to present a defense and judgment should be entered against him.”
The motion points to similar behavior from Giuliani in a different defamation case brought by two Georgia election workers. In that case, Giuliani recently filed what he described as a “no contest” stipulation, essentially admitting that he defamed the women. That move appears to be an effort to avoid participating in the litigation, including discovery — which, according to court documents, he has similarly avoided in that case.
In April, Fox News settled a defamation claim brought by Dominion Voting Systems for $787.5 million over similar false statements regarding the 2020 presidential election.
A hearing on Smartmatic’s motion has been set for Aug. 16.
Read Smartmatic’s filing, below.
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