Counsel

Christine Kwon (pro hac vice), John Langford (pro hac vice), Los Angeles, CA; John Tyler Knoblett, Meryl Conant Governski, Michael J. Gottlieb, Timothy Ryan, Wilkie Farr & Gallagher LLP, Washington, DC; Marie Annie Houghton-Larsen (pro hac vice), Wilkie Farr & Gallagher, LLP, New York, NY; Rachel Goodman (pro hac vice), Protect Democracy, New York, NY; Sara Chimene-Weiss (pro hac vice), Protect Democracy, Washington, DC; Von DuBose (pro hac vice), Dubose Miller, Atlanta, GA
For Plaintiffs Ruby Freeman and Wandrea Moss
Joseph D. Sibley, Camara and Sibley LLP, Austin, TX
For Defendant Rudolph Giuliani
Daniel Stephen Walsh, Department of Law, State of Georgia, Atlanta, GA
For Non-Party Petitioner Office of the Secretary of State for the State of Georgia
Timothy Parlatore, Parlatore Law Group LLP, New York, NY
For Non-Party Respondent Bernard Kerik

Howell, Beryl A., United States District Judge

Civil society rests on the ability of courts to resolve disputes between private parties, subject to governing substantive law and procedural rules that “secure” for the disputing parties “the just, speedy, and inexpensive determination of every action.” FED. R. CIV. P. 1; see Runkle v. Nong Kimny, 266 F.2d 689, 693 (D.C. Cir. 1959) (“[T]he purpose of the Federal Rules of Civil Procedure is to afford the litigant a just, inexpensive and speedy trial of issues[.]”). Paramount to fulfill the goals for which the procedural rules were designed is that parties to civil litigation comply fully and timely with their discovery obligations, an obligation that extends to non-parties brought into the litigation, pursuant to Federal Rule of Civil Procedure 45, to supply relevant testimony and documents for a fair appraisal of the facts and a “just” determination. Even when litigants and non-parties would prefer to do something—or anything—other than spend time and effort complying with discovery obligations, they must do so in service to the rule of law.

Lawyers have a special professional obligation to ensure compliance with the procedural rules because “[a] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” ABA Model R. Prof’l Conduct, Preamble [1] (2023); see FED. R. CIV. P. 11 (c)(1) (authorizing imposition of “appropriate sanction on any attorney, law firm or party that violated . . . or is responsible for the violation” of Rule 11(b), which describes sanctionable attorney representations); FED. R. CIV. P. 11(d) (making Rule 11 sanctions inapplicable to “disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37”). Lawyers who fail to fulfill their professional obligations to ensure diligent compliance with discovery obligations frustrate the purposes of the procedural rules and therefore may be specially targeted for sanctions, including payment of reasonable attorney’s fees and costs caused by the failure. See FED. R. CIV. P. 26(g)(3); FED. R. CIV. P. 37(a)(5)(A), (d)(3), (f).  

Since initiation of the instant lawsuit in December 2021, plaintiffs Ruby Freeman and Wandrea Arshaye Moss, who worked as election workers for Fulton County, Georgia during the 2020 election, have vigorously sought to obtain discovery relevant to their three claims of defamation, intentional infliction of emotional distress, and civil conspiracy for all alleged torts, see Compl., ECF No. 1; Am. Compl., ECF No. 22, arising from defendant Rudolph W. Giuliani's alleged “campaign to undermine the legitimacy of the 2020 election,” as part of which “Giuliani made a litany of statements and accusations against plaintiffs concerning their activities as election workers[.]” Freeman v. Giuliani, No. CV 21-3354 (BAH), 2022 WL 16551323, at *1 (D.D.C. Oct. 31, 2022).[1] Since discovery in this case began, however, plaintiffs have confronted obstacle after obstacle in their quest to obtain discoverable information, necessitating their filing of two separate motions to compel discovery from Giuliani and his businesses, Pls.’ Mot. to Compel Discovery, ECF No. 44; Revised Pls.’ Mot to Compel Giuliani Partners and Giuliani Communications to Respond to Plaintiffs’ Properly Served Rule 45 Subpoenas, ECF No. 70, as well as a motion for sanctions, Pls.’ Mot. for Discovery Sanctions, ECF No. 81, and requiring, thus far, five separate Court Orders to secure Giuliani’s compliance with his discovery obligations, see Minute Orders (May 19 and 31, June 22 and 23, and July 13, 2023).  

Giuliani’s recalcitrant discovery conduct, however, is not the only hurdle plaintiffs have had to overcome. Individuals not named as defendants in this litigation but who nonetheless were part of the effort by Giuliani, and others, to sow doubt in the legitimacy of the 2020 election have also thwarted plaintiffs’ efforts to obtain relevant information and evidence, necessitating repeated intervention by this Court. See, e.g., Minute Order (Dec. 20, 2022) (authorizing plaintiffs to serve Katherine Friess with a Rule 45 Subpoena via alternate means after plaintiffs spent considerable resources to serve Freiss “ten times over four months at six different addresses in three different states”); Minute Order (May 10, 2023) (authorizing plaintiffs to serve Jenna Ellis with a Rule 45 Subpoena via alternate means after plaintiffs spent considerable resources to “serve her three times at an address where she is believed to have recently resided and where her mother currently resides”).  

Most recently, plaintiffs identified in their pending motion to compel, see Pls.’ Mot. to Compel (“Pls.’ Mot.”), ECF No. 63, yet another Giuliani associate to stand in their way to obtaining the discovery to which they are entitled under the procedural rules: non-party Bernard Kerik, who, during the period between December 3 and 28, 2020, “used his Twitter account to publish false accusations about” plaintiffs, including video of them and using the plaintiffs’ names. Id. at 2–4; see, e.g., id. at 3 (screenshot of Kerik tweet, dated “Dec. 14, 2020,” stating, “Ruby Freeman and her daughter in Georgia have yet to be questioned before a grand jury and there’s been no #MSM coverage of their alleged crimes that were seen around the world. #coverup #censorship #Election 2020 #StopTheSteal2020”). Kerik seems to have successfully ducked over a dozen attempts by plaintiffs to serve him with a Rule 45 subpoena for discovery—at a cost to plaintiffs of “an estimated over $15,000,” id. at 6 n.5—from August 2022 until November 14, 2022, when Kerik’s counsel, Timothy C. Parlatore, who had been communicating with contact with plaintiffs’ counsel, finally agreed to accept service on his client Kerik’s behalf, id. at 5–6.

As detailed below, Kerik has remained recalcitrant in complying fully with his discovery obligations. Consequently, after ten months of effort to obtain relevant information from Kerik, on June 9, 2023, plaintiffs were again forced to resort to filing the pending motion, under Federal Rule of Civil Procedure 37, to compel Kerik to produce a document-by-document privilege log and to produce documents and testimony improperly withheld as privileged. This motion was initially ignored by Kerik and his counsel.  

When Kerik failed to file a timely response, the Court afforded Kerik an extended opportunity to respond to plaintiffs’ motion to compel, by directing him to show cause why plaintiffs’ motion should not be granted as conceded. See Order To Show Cause (“OTSC”) (Jun. 26, 2023). Before the OTSC deadline, on June 28, 2023, Parlatore filed a brief, seven-paragraph declaration on Kerik’s behalf, opposing the motion to compel for two claimed procedural reasons: (1) that the motion was never served on Kerik, such that his failure to oppose plaintiffs’ motion was not untimely and he in fact had no obligation to respond; and (2) that the motion “was filed in the wrong Court.” Declaration of Timothy C. Parlatore ¶¶ 2-4, 7 (“Parlatore Decl.”), ECF No. 74. Additionally, Kerik shifts any blame for shortfalls in his production of responsive records and an adequate privilege log to the putative privilege holders—the presidential campaign for Donald J. Trump and defendant Giuliani—as the persons responsible for deciding “whether a claim of privilege is to be waived[,]” since Kerik is “a non-attorney investigator on the legal team[.]” Id. ¶ 5.  

For the reasons outlined below, Kerik’s justifications for failing to respond to plaintiffs’ motion are incorrect as a matter of law and, given the apparent inadequacy of his discovery compliance, plaintiffs’ motion to compel is granted in part and reserved in part.

I. BACKGROUND

Summarized below is factual and procedural background relevant to resolving plaintiffs’ motion.

Kerik has a long-term close association with Giuliani and worked with Giuliani, at the latter’s request, “to ‘come back and assist him’ in efforts to challenge the results of the 2020 presidential election.” Pls.’ Mot. at 1 (quoting Decl. of M. Annie Houghton-Larsen in Supp. Pls.’ Mot. to Compel (“Houghton-Larsen Decl.”), Ex. 3, Excerpts from Dec. 7, 2022, Testimony of Bernard Kerik before the District of Columbia Court of Appeals Board on Professional Responsibility, in In re Giuliani, No. 22-BD-027 (“Kerik DCCA Tr.”) at 821:14–822:3, ECF No. 63-4). Kerik, as plaintiffs say, “answered that call and became, in his own words, ‘the primary investigator and coordinator’ for Defendant Giuliani’s post-2020 election efforts,” and “was ‘one of the main people funneling information’ to Defendant Giuliani[.]” Id. (quoting Kerik DCCA Tr. at 824:6–7, 825:2–7). As noted, in the wake of the 2020 election, Kerik also “publish[ed] false accusations about [plaintiffs] similar to those . . . published by Defendant Giuliani.” Pls.’ Mot. at 2–3; see, e.g., id. at 2 (screenshot of Kerik’s Tweet on December 3, 2020, in which Kerik wrote, “Democratic poll workers waited until the coast was clear, before pulling out containers of ballots and counting them without republican monitors. #Evidence of a #crime”).  

Over three months after Parlatore agreed, on November 14, 2022, to accept service of the First Kerik Subpoena, Parlatore alerted plaintiffs’ counsel, on February 24, 2023, that acceptance of service was actually only on condition that any deposition take place virtually. Id. ¶ 8. Rejecting this new condition, plaintiffs proceeded to serve Kerik personally, on March 5, 2023, with a second subpoena for records and deposition testimony (“Second Kerik Subpoena”), with the deposition noticed for March 20, 2023, in New York, N.Y. Id. ¶ 8. Notably, at Parlatore’s request that the deposition take place in Washington, D.C., id. ¶ 9, a third subpoena, dated March 15, 2023, was issued to Kerik for documents and his deposition, on the same date set out in the Second Kerik Subpoena of March 20, 2023, in the district Kerik and Parlatore requested, here in Washington, D.C. Id. ¶ 20; id., Ex. 8 (“Third Kerik Subpoena”), ECF No. 63-9. Parlatore accepted service of the Third Kerik Subpoena, that was issued at Parlatore’s request, on behalf of his client. Pls.’ Mot. at 7 (explaining that plaintiffs “served Mr. Kerik via email to his counsel[] with” the Third Kerik Subpoena); Houghton-Larsen Decl., Ex. 7 at 5 (March 15, 2023 Email from Parlatore to Plaintiffs’ Counsel stating, “I do accept service [on behalf of Mr. Kerik],” referring to the Third Kerik Subpoena), ECF No. 63-8. Plaintiffs’ pending motion to compel seeks Kerik’s compliance with the Third Kerik Subpoena for responsive records and deposition testimony.

Kerik sat for his deposition, on March 20, 2023, in Washington, D.C., but even by that late date, had still produced no documents in response to the specific discovery requests in this case nor did he do so at his deposition, beyond those 53 records produced to the Select Committee. This is not because he had no documents to produce. To the contrary, Kerik testified at his deposition that he maintains an electronic folder of documents related to his investigation into election issues and that he reviewed that folder in preparation for his deposition to refresh his recollection. Houghton-Larsen Decl., Ex. 2, Excerpts from March 20, 2023 Deposition of Bernard Kerik (“Kerik Dep. Tr.”) at 13 (Kerik testifying that in preparation for the deposition he “[b]asically just looked over some notes that I have. . . . I have a file, a file that has a bunch of material from the election of 2020 . . . It’s an electronic file . . . They’re documents that were collected throughout the investigation, subsequent to the investigation.”), ECF No. 63-3; accord id. at Ex. 10, March 27, 2023 Letter from Plaintiffs’ Counsel to Parlatore at 1 (making the same observation), ECF No. 63-11.

According to plaintiffs, Kerik is “withholding documents and testimony based on purported privilege grounds,” Pls.’ Mot. at 5 (capitalization omitted), and “has never produced a privilege log that complies with [Federal] Rule [of Civil Procedure] 26, or even one that is addressed to the documents responsive to Plaintiffs’ requests.” Id. at 12. After attempting to confer repeatedly with Parlatore, regarding, in plaintiffs’ view, Kerik’s document production deficiencies, lack of a detailed privilege log, and improperly withheld deposition testimony, plaintiffs filed their pending Motion, on June 9, 2023, seeking to compel Kerik’s compliance with his discovery obligations. See generally id. At the time plaintiffs filed their instant motion, Kerik had produced only “the 53 [publicly] available documents produced to the Select Committee,” Houghton-Larsen Decl. ¶ 10, and the privilege log produced to the Select Committee, id., Ex. 6 (Kerik Privilege Log), ECF No. 63-7.  

Aside from attorneys’ fees and costs for filing the motion, plaintiffs seek three forms of relief. First, plaintiffs seek a detailed compliant privilege log from Kerik. See Pls.’ Mot. at 1. The Kerik Privilege Log produced to the Select Committee and then passed along to plaintiffs lists 302 records withheld on a categorical basis, rather than a document-by-document, basis, without specifying for each document any precise dates, specific names of recipients or authors, or the type, subject, title, or length of the withheld document or communication that would enable assessment of the privilege asserted.  

Second, plaintiffs request that Kerik be ordered to produce 43 documents reflected on the Kerik Privilege Log as being withheld on attorney work product privilege grounds, and generally described as “37 ‘internal communications related to external messaging,’ five ‘internal emails about legislature meetings’ and ‘packets of evidence that accompany affidavits[.]’” Pls.’ Mot. at 14 (quoting Kerik Privilege Log). The Kerik Privilege Log is murky as to the basis for withholding the 43 withheld records under the work product privilege, instead baldly asserting that these records were, for example, “communications made by the election investigation legal team in anticipation of litigation,” with no additional explanation or specification of the litigation anticipated. See, e.g., Kerik Privilege Log at 1. Based on these vague descriptions in the Kerik Privilege Log of these 43 withheld documents, plaintiffs argue that documents “created for purposes of ‘external messaging’ and ‘legislature meetings’ do not constitute legal work product,” because the work product doctrine “protects only documents created ‘for the purpose of assisting an attorney in preparing for litigation, and not for some other reason.’” Pls.’ Mot. at 15 (italics in original) (quoting Alexander v. FBI, 192 F.R.D. 42, 46 (D.D.C. 2000)). With respect to the documents described as “packets of evidence that accompany affidavits,” plaintiffs argue that these documents cannot be privileged because “factual matter in a document only warrants work product protection if it reflects an attorney’s mental processes—there is no reason to believe that the packets of evidence reflect any attorney mental processes.” Id. at 17 (italics in original) (citing See United States v. All Assets Held at Bank Julius Baer & Co., 315 F.R.D. 103, 109 (D.D.C. 2016)).

Finally, plaintiffs request that Kerik be required to provide testimony that he withheld during his deposition. Id. at 1. Plaintiffs explain that “Parlatore instructed Mr. Kerik not to answer four categories of questions based on work product privilege that related to: (1) The purpose of the Giuliani Team’s efforts[;] (2) [t]he work [Kerik] performed in six swing states, including Georgia[;] (3) [t]he methods of communication used by the Giuliani Team[;] and (4) [t]he members and roles of the Giuliani team[.]” Pls.’ Mot. at 7–8 (citations omitted) (together, the “Withheld Topics”).[2] Parlatore directed Kerik not to respond to questions regarding these topics because they touch on the Giuliani Team’s “investigations in anticipation of litigation.” See, e.g., Kerik Dep. Tr. at 43:5-10 (Parlatore stating, “Do you not hear what I was just saying? . . . To the extent that they are doing investigations in anticipation of litigation, that is work product.”). As already noted, the deadline for response to plaintiffs’ pending motion passed without a peep from Kerik or his counsel. Only after the Court issued an order to show cause why this motion should not be granted did Parlatore, in response to that OTSC, submit his brief seven paragraph declaration opposing plaintiffs’ motion. See Parlatore Decl. On June 28, 2023, the same day this declaration was filed, Parlatore also produced to plaintiffs 19 of the 43 withheld documents, which plaintiffs disputed as plainly not subject to privilege or work product protection—leaving 24 of the original 43 documents still withheld—and a revised privilege log, showing the withholding of, by the Court’s estimation, 400 documents. Pls.’ Resp. to Parlatore Decl. (“Pls.’ Resp.”), at 8, ECF No. 79; see Declaration of M. Annie Houghton-Larsen Supp. Pls.’ Resp. to Timothy Parlatore’s Decl. (“2nd Houghton-Larsen Decl.”), Ex. 3 at 1, June 28, 2023 Email from Parlatore to plaintiffs’ counsel (providing an updated privilege log and “documents that [defendant and Kerik] are not asserting privilege over”), ECF No. 79-4; id., Ex. 4, Revised Kerik Privilege Log by Bernard Kerik (“Revised Kerik Privilege Log”), ECF No. 79-5.[3] While Kerik is now asserting privilege claims “on an individual basis,” plaintiffs point out that the Revised Kerik Privilege Log remains inadequate by “not provid[ing] sufficient information to allow Plaintiffs or the Court to assess the claims of privilege” because “[i]n the column ‘Nature and Basis of Privilege Claim,’ Mr. Kerik repeats just 14 improperly vague ‘descriptions’—three of which only reflect that the document is being reviewed by counsel and provide no other description as to why the document is being withheld.” Pls.’ Resp. at 9 (emphasis in original).[4]  In sum, after Kerik’s belated disclosures after the pending motion to compel had already been filed, plaintiffs now seek immediate production of 24 of the 400 withheld documents as improperly withheld as attorney work product (“the Withheld Records”), a rule-compliant privilege log that provides sufficient description as to why each document is being withheld to assess the basis for assertion of privilege or work product protection, since the fourteen repeated descriptions provided in the Revised Kerik Privilege Log remain inadequate, and Kerik to provide testimony on the Withheld Topics.  

Plaintiffs’ motion to compel is now ripe to resolve.

II. DISCUSSION

Parlatore’s belated response to plaintiffs’ motion to compel Kerik to comply with his discovery obligations raises little contest as to plaintiffs’ critiques regarding the insufficiency of Kerik’s document production to date and in response to the Third Kerik Subpoena, nor the inadequacy of the Kerik Privilege Log. Indeed, the same day Parlatore filed his response to the OTSC, he also “forwarded” additional documents and the Revised Kerik Privilege Log to plaintiffs. Parlatore Decl. ¶ 6. Instead, this response raises two purely procedural bogeymen, both of which prove chimerical, and one substantive objection, which falls flat on close inspection. Parlatore’s Declaration turns out to be a paradigm of selective omission that has worked only to delay further Kerik’s compliance with his Rule 45 discovery obligations. Given the documented record as set out by plaintiffs, with attached exhibits in the Houghton-Larsen Declarations, Kerik and Parlatore’s procedural and substantive objections to the pending motion are without merit and are rejected.