Last Tuesday Rudy Giuliani filed a two-page stipulation in a long-running defamation lawsuit by two Georgia election workers stating that he “does not contest” that his statements about the plaintiffs were “false” and “carry meaning that is defamatory.” According to the reporting, Giuliani’s attorney added that Giuliani was not in fact “admitting” to the plaintiffs’ allegations against him but making a decision to stop contesting them, which he says should end the plaintiffs’ effort to seek further factual evidence – emails, text messages and other communications – from Giuliani.
Unfortunately for Giuliani, that’s not how anything works.
First of all, trying to make a distinction between conceding the allegations and not contesting them is nonsense. You can’t have it both ways. In the document, Giuliani conceded that he made the statements alleged in the complaint, that the statements were false and that they were defamatory per se. That means he conceded all the elements of the cause of action. Period, end of story. All Giuliani has left after that is arguing affirmative defenses. And which ones are there? I don’t see any.
He apparently claims that either the statements were statements of opinion or that they were constitutionally protected. Both arguments are wrong.
Once he admits that the statements he made were “false” he has admitted they were not opinions. By definition opinions can’t be true or false – that’s what distinguishes them from statements of fact. But Giuliani has conceded they were statements of fact. So that argument is out - he defeated it himself!
The other possible argument – that the statements were constitutionally protected, is also flawed. First, the notion of defamation is based on the doctrine that not all speech is protected and that if it is not protected, it can result in possible liability. That’s what defamation law is all about. So the question becomes whether the plaintiff can meet the standard needed to show that the speech is not protected and, therefore, should subject the defendant to liability.
On that, the doctrine has created different standards for different categories of plaintiffs. If the plaintiff is a public official or a public figure, the plaintiff has to meet a higher standard because speech about them is more protected. But the plaintiffs in this case were neither. They were private persons performing a volunteer job as election officials. I could be wrong about this, but I don’t think they were elected officials for that job, and they were not known celebrities before the elections and before Giuliani and others started accusing them of misconduct. If I am correct in those assumptions, the plaintiffs in this case do not have to show actual malice on the part of the defendant and will have an easier time defeating the argument that the statements were constitutionally protected.
Second, Giuliani can’t just say that he wants to end discovery because he does not want to disclose more information. Discovery exists to allow the parties access to information and, as everyone knows, discovery is not limited to evidence that can be used at trial. You can use discovery to get access to evidence that will likely lead to evidence that can be used at trial. In this case, the plaintiffs may want to use discovery to determine if there are other potential defendants they can go after or to discover support for a claim for punitive damages, for example.
The fact Giuliani says he is conceding the elements of the claim to end the plaintiffs’ effort to seek further factual evidence just makes me wonder what he has that wants to hide so badly.
And, further, defamation was not the only claim in this case. The plaintiffs’ also sued for emotional distress which is a separate cause of action and they should have the right to continue discovery in order to get evidence related to that claim, which should include the evidence that Giuliani apparently does not want them to get access to.
For these reasons, it seems to me the decision to concede the elements of the defamation cause of action was not a very smart one. It defeats one of his defenses, makes it easier for the plaintiffs to support their claim and should not stop discovery.
Finally, as an aside, I also can't imagine that publicly admitting that he lied in a way that caused so much injury to private individuals is going to help Giuliani's chances to avoid discipline in the various disciplinary proceedings he is facing.
UPDATE 8/9/23: As expected, the judge did not buy it. See here.
UPDATE: 9/3/23: The Court has now entered a judgment by default against Giuliani and ordered him to pay attorneys' fees and other sanctions. The case will now proceed to trial on the question of damages only which is likely to result in a very high verdict for the plaintiffs. Go here for my post on this new development.