HR Management & Compliance

Lessons From the Defamation Lawsuit Against Rudy Guiliani

Readers may have noticed news reports that on August 30, a federal judge declared Rudy Giuliani was on the losing end of a defamation lawsuit filed by two Georgia election workers. He had claimed they were involved in election shenanigans but ultimately, the accusation was baseless. But that isn’t why he lost. Rather, the judge declared him the loser because, in the court’s view, he failed to fulfill his obligations to preserve electronically stored information (ESI). Because ESI preservation issues arise in all lawsuits, we wanted to use the Rudy G case as an entry point for a discussion.

‘I Turned Off Autodelete! Geez, What Else Do You Want Me to Do!?’

That was pretty much Rudy G’s defense when the two women sought sanctions against him after learning that ESI in his possession was missing from his discovery (pretrial fact finding) responses.

The judge wasn’t in a buying mood. She gave Rudy G—and all litigants—an education in ESI preservation.

Step 1: When Is the ESI Preservation Duty Triggered?

The answer might surprise some readers. It isn’t when a lawsuit is filed but rather when a potential litigant gets notice that a lawsuit might be filed. How does that occur? Usually when the potential litigant gets a what’s called a demand letter from a lawyer claiming a legal violation and requesting damages.

It’s important to note that it’s the demand that matters, not whether the recipient of the letter believes the demand is meritorious. (By the way, always—without exception—submit the demand to your insurance broker/carrier, no matter what the claim. Otherwise, you could lose coverage.) Notice could also be a public statement by an aggrieved person that they intend to seek justice or resort to the courts. When in doubt, err on the side of thinking a lawsuit is in the cards.

Step 2: What Happens After You Get the Notice?

At a minimum, you turn off autodelete functions. But there’s more. The court in the Rudy G case said no gold star for only doing this. Instead, you must back up all of your ESI and save it, and you must do so on all devices. In addition, you have to record when this is done and on what devices.

The court lambasted Guiliani for not doing so. He seemed completely unable to provide any details, let alone confirmation, about what precise steps he took to preserve ESI on each of his individual devices and communication accounts.

Get a forensic expert to help you. They aren’t that expensive, and if in Texas, be sure to get one who is licensed as a private investigator so they’ll be able to testify later at a trial if need be. (By the way, don’t rely on your nephew who has taken some courses at a community college or, for that matter, solely on your internal IT department. Avoid the appearance of a conflict or that you don’t take your ESI preservation obligations seriously.)

Step 3: What Is a Litigation Hold Letter?

A litigation hold letter is a communication sent to those in an organization who might have ESI or other paper documents. Break out the memo into questions for ease of understanding and provide the answers for both paper and ESI—for example:

  • Why are you receiving this memo?
  • What are you required to do because of this memo?
  • What documents and information must you preserve?
  • How do you preserve documents and information?

Be sure to take extra measures for any employees whose conduct might be the subject of a lawsuit (alleged harassment or ethical misconduct). After all, it’s often appearance that matters, and it matters a lot.

Step 4: What Are the Consequences If I Don’t?

Well, ask Rudy G. You could lose the case without a trial. The ESI that isn’t preserved could make a difference to those suing you in their ability to prove their case. The fight is therefore not a fair one, which is what our system requires.

Of course, not all sanctions are as harsh as those meted out to Guiliani. (I understand he will appeal the decision, and I will update readers on any developments.) Some courts will sanction via an “adverse inference instruction” to the jury, meaning the jury is told documents were destroyed and they are entitled to conclude the documents would have helped the plaintiff’s case. Ruby Freeman et al v. Rudolph W. Giuliani (D.C., August 30, 2023).

Bottom Line

Note that when an employer is sued by an employee or former employee, you should always, no exceptions, write the counsel opposite and remind them that they need to preserve all documents, including ESI such as Facebook, Instagram, Twitter, and whatever else gets invented. There are cases in which the employee loses because they deleted information post-request.

This is all a lot of work, but when you go into litigation, you want to win or lose based on the merits, not on whether you followed the rules.

Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at

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