The Volokh Conspiracy
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Court Orders Unsealing of Part of Declaration by Giuliani's Ex-Lawyers in Georgia Election Workers' Defamation Case
"To permit Defendant to claim that he had instructed his lawyers to comply with all court orders including those requiring electronic production and that it was Prior Counsel who were responsible for the misdeeds that have plagued this case, while sitting on declarations in the court file that belie those claims, would permit him to make a 'mockery' of the court and its proceedings. "
Some excerpts from Freeman v. Giuliani, decided Monday by Judge Lewis Liman (S.D.N.Y.) (read the whole opinion for more details):
[Earlier,] the Court permitted the filing under seal of certain paragraphs of the declarations of Kenneth A. Caruso and David Labkowski (collectively, "Prior Counsel") to withdraw as counsel for Defendant Rudolph W. Giuliani ("Defendant") in this case. The Court recognized that there was a common law and First Amendment right of access to documents filed in public court, but held that there were countervailing factors that supported sealing of those paragraphs that contained privileged information, specifically paragraphs 4 to 7 in Mr. Caruso's declaration.
In particular, certain of those paragraphs discussed fundamental disagreements that had arisen between Defendant and Messrs. Caruso and Labkowski regarding document production in this case. The Court now considers whether it is appropriate to unseal portions of those declarations, as Defendant has put privileged communications "at issue" in his representations to the Court. For the reasons discussed below, there no longer exist countervailing factors justifying continued sealing of certain portions of the declarations, and unsealing those portions is appropriate and necessary in the interests of fairness and to protect the integrity of the court….
Plaintiffs Ruby Freeman and Wandrea' Moss filed a motion … for an order holding Defendant in civil contempt and imposing sanctions [for violating discovery orders]…. In response to that motion and in opposition to the request for civil contempt sanctions, Defendant has submitted a declaration in which he pins the blame for his discovery failures on Messrs. Caruso and Labkowski. In particular, Defendant asserts that he did not "intentionally or willfully disobe[y] any of this Court's orders or Plaintiffs' discovery demands." He swears:
I relied upon my prior counsels, Kenneth Caruso, Esq. and David Labkowski, Esq. to timely respond to the Plaintiffs' discovery demands with my input as they needed, and to avoid disobeying any of this Court's orders or discovery demands.
He also swears:
I relied upon my attorneys, Kenneth Caruso, Esq. and David Labkowski, Esq. to provide timely responses, objections and production of responsive materials to the Plaintiffs' counsel by required deadlines. I did not intentionally or willfully disobey or violate any orders or demands.
And further, he swears:
Ultimately, I believe that all discovery was provided to the Plaintiffs, once I retained Joseph Cammarata, Esq., and Kenneth Caruso, Esq. and David Labkowski, Esq. were relieved as counsel on November 26, 2024. The time frame for the production of documents was very short and while my prior counsels did not timely respond, Joseph Cammarata, Esq. made his best efforts to respond as soon as practically possible with my input and responding.
He also makes similar, repeated, arguments in his memorandum of law in opposition to the motion for sanctions.
Defendant's statements in his declaration and in his memorandum of law are contradicted by the declarations of Messrs. Caruso and Labkowski. On November 13, 2024, Messrs. Caruso and Labkowski filed ex parte motions to withdraw as counsel. The basis for those motions was not the volume of requests made by Plaintiffs, as Defendant now asserts. Defendant knows that assertion to be untrue. The grounds asserted were irreconcilable differences, the insistence of the Defendant upon presenting a claim or defense not warranted by existing law and not supportable by a good faith argument for an extension, modification, or reversal of existing law, and the failure to cooperate.
The motions were supported by declarations from Messrs. Caruso and Labkowski. The declarations, if credited, undermine any notion that Defendant relied upon Prior Counsel in connection with discovery. The two state that Defendant informed them that he would not participate in discovery in this action and that he would not identify or provide access to his electronic devices for purposes of discovery. He did so against the advice of counsel. The Court permitted counsel to withdraw on November 26, 2024….
The Court directs the unsealing of portions of the declarations. By making the arguments he puts forth in his declaration and in his memorandum of law, Defendant has put directly at issue his reliance on advice of counsel. It is settled law that "the attorney-client privilege cannot at once be used as a shield and a sword." Accordingly, "a waiver [of the privilege] may be implied in circumstances where it is called for in the interests of fairness."
The quintessential example of such a waiver arises when a defendant "asserts an advice-of-counsel defense and is thereby deemed to have waived his attorney-client privilege with respect to the advice that he received." … "It has been established law for a hundred years that when the client waives the privilege by testifying about what transpired between her and her attorney, she cannot thereafter insist that the mouth of the attorney be shut." … An implied waiver also occurs when "a party uses an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion," including where a party "makes factual assertions, the truthfulness of which may be assessed only by an examination of the privileged communications or documents." Once waiver is found, "[t]he widely applied standard for determining the scope of a waiver is that the waiver applies to all other communications relating to the same subject matter."
In fairness, the Court cannot allow Defendant to convey a story to the Court and to the public that Prior Counsel is responsible for his discovery violations while shielding the evidence that—if true—would expose that story as a fabrication. Defendant has waived the privilege with respect to his communications with Prior Counsel regarding document production, information requests, interrogatories or the deposition requests….
The unsealing is not only necessary so that the public can understand the basis of the Court's decisions, although it is relevant to that purpose. It is necessary to protect the integrity of the court and its orders…. "The Court … has an independent interest in assuring that it is not being used as an instrument of fraud." … To permit Defendant to claim that he had instructed his lawyers to comply with all court orders including those requiring electronic production and that it was Prior Counsel who were responsible for the misdeeds that have plagued this case, while sitting on declarations in the court file that belie those claims, would permit him to make a "mockery" of the court and its proceedings.
The Court has a motion for contempt before it and two diametrically opposed sets of declarations. One declaration proffers what purports to be an innocent explanation for the discovery failures in this case, at least up until the time the motion to withdraw was granted. The second set of declarations can be read to suggest that that explanation is false; that the Defendant has knowingly, willfully, and contrary to advice of Prior Counsel, violated the Court's orders; and that his current declaration and submission continue to be untrue.
The Court has not reached a judgment as to which version of the facts to accept, or whether there is yet another version that is true. The Court has reached no judgment as to whether Defendant is in contempt or, if so, what contempt sanctions to reach. Those questions await another day.
But it cannot under the law ignore the declarations of Prior Counsel and pretend that they did not exist. And it cannot consider those declarations without making them available to opposing counsel and to the public who have a right to know how the Court reaches its decisions. Because there is no longer any basis in the law of privilege to keep that information private, there also is no basis to withhold from the public the documents that go centrally to the issue of whether Defendant has acted in contempt of Court.
The Court accordingly directs the Clerk of Court to unseal the first four sentences of Paragraph 4 of the Caruso declaration at 24-cv-06563, Dkt. No. 76; 24-mc-00353, Dkt. No. 104.
As I read the filing accompanying the order, the unsealed sentences are (as the order itself suggests):
Defendant has informed us that he will not participate in electronic discovery in the Homestead Action. Specifically, he has informed us that he will not identify or provide access to his electronic device(s) for imaging by an electronics-discovery vendor, which we have identified. We have a fundamental disagreement with that position. Defendant's position also constitutes a failure to cooperate with us in the representation and renders it unreasonably difficult for us to carry out our employment effectively.
