GILMORE, et al v. PALESTINIAN INTERIM, et al

Filing 365

MEMORANDUM OPINION to the Order denying Plaintiffs' Renewed Motion for Production of PA GIS Documents and for Related Relief. Signed by Judge Gladys Kessler on 3/24/14. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REUVEN GILMORE, et al.,
Plaintiffs,
Civil Action No. 1-853 {GK)

v.
PALESTINIAN INTERIM SELFGOVERNMENT AUTHORITY, et al.,
Defendants.

MEMORANDUM OPINION
Plaintiffs are family members and the estate of Eish Kodesh
Gilmore,

a

United

October

30,

2000,

bring

this

case

Self -Government
Organization
the

States
in

national

Jerusalem,

against

Authority

("PLO")

Israel

Defendants,
( "PA")

of

1991

in

a

shooting

("Plaintiffs") .

the

and

(collectively,

Anti-Terrorism Act

killed

the

Palestinian
Palestine

"Defendants")

("ATA"),

18

on

They
Interim

Liberation

pursuant

U.S.C.

to

2331,

et

§

seq., and related common law theories.
This

matter

is

before

the

Court

on

Plaintiffs'

Renewed

Motion for Production of PA GIS Documents and for Related Relief
[Dkt.

No.

352] .

[Dkt.

No.

356],

herein,

and

for

shall be denied.

Upon consideration of
and

Reply

the

reasons

[Dkt.

No.

stated

the

357],
below,

Motion,
the

Opposition

entire

record

Plaintiffs'

Motion

I .

BACKGROUND

Eish
2000,
a

Kodesh

Gilmore

was

shot

and

killed

at the beginning of the Second Intifada,

on

October

3 0,

while working as

security guard at the Jerusalem branch office of the Israeli

National

Insurance

Institute.

Plaintiffs

employee Muhanad Abu Halawa shot Gilmore,
agents of the PA and PLO,
and

Mahmoud

Damara,

in

planning

that

PA

and that three other

Mustafa Misalmani,

helped

allege

and

Bashar Al-Khatib,
carrying

out

the

attack. 1
Plaintiffs

filed

this

commenced on March 22,
22,

2010

[Dkt.

for

summary

No.

judgment,

Discovery

See Memorandum Order,

2010.

181].

2 001.

dated Mar.

case on April

On August

arguing

that

9,

18,

2012,

"[a] t

Defendants moved

the

close

of

fact

discovery - and after deposing Misalmani, Al-Khatib, and Damara,
among others take

to

a

jury

Plaintiffs still have no admissible evidence to
supporting

Halawa shot Gilmore."
285] .

Plaintiffs

Defendants'

1

Motion

did
for

their

Defs.'
not

Mot.

lynchpin

allegation

for Summ.

initially

Summary Judgment

file
but

J.
an

at 2

that

Abu

[Dkt.

No.

Opposition

instead moved

to
for

Due to the transliteration of these individuals' names from
English to Arabic, the names are also sometimes written as
Mustafa "Maslamani," Mahmoud "Damra" and "Muhannad Abu Halaweh."
Abu Halawa is also known by the name "Muhannad Sa' eed Munib
Deireia."
-2-

additional time to complete discovery pursuant to Fed.

R.

Civ.
[Dkt.

P. 56(d), which the Court granted on September 19, 2012.
No. 297].
Six months later,
resume
that

briefing

the

on

on March 19,

their Motion

additional

discovery

2013,

for

Defendants sought to

Summary Judgment,

Plaintiffs

noting

requested under Rule

56(d) had either been completed or was at a standstill [Dkt. No.
298] .
While

that

Motion

was

pending,

on

2013,

19,

April

Plaintiffs filed a Motion to Compel Production of Late-Disclosed
Documents.

[Dkt. No. 303].

Plaintiffs sought files created by

the PA' s General Intelligence Service

("GIS")

pertaining to Abu

Halawa, Damara, and Misalmani, the existence of which Defendants
had recently disclosed to Plaintiffs,

and which Defendants were

withholding

"state-secrets"

on

the

basis

enforcement privileges.
been fully briefed,
files

to

the

permission,

of

the

and

law

After Plaintiffs' Motion to Compel had

the Court directed Defendants to submit the

Court

for

Defendants

in

also

camera

review.

submitted an

With

ex parte

the

Court' s

explanatory

Memorandum to aid the Court's review.
On June 6,

2013,

after reviewing the documents in camera,

the Court denied Plaintiffs'

Motion to Compel.
-3-

See Memorandum

Order,

dated June

explained

that

Defendants

is

6,

2013

[Dkt.

"[n]owhere
there

in

any

relevant to Plaintiffs'

No.
the

25

admissible

case."

The

314] .

first

submitted

pages

evidence

Court

that

by

would

be ·

Elaborating on this

Id. at 2.

point, the Court noted that the documents largely post-dated the
National

Insurance

mentioned the
Further,

the

Institute

attack,

attack

did not

the

extent

constitute admissible
was

materials already in Plaintiffs' possession.

the

they

evidence.

Id.

compel

in

to

documents

Next,

information

and,

the Court explained that,

disclosure

prohibited

under

of
the

of

"in considering whether to

documents

where

laws

the

of

duplicative

such
foreign

disclosure"

is

government

in

possession of them, a court should be guided by the factors set
forth

in

Dis t .

Ct .

extent

Societe
I

to

Nationale

4 8 2 u. s .
which

52 2

Industrielle

( 19 8 7) .

Aerospatiale

Among these factors

compliance

with

the

v.

U.S.

is

"the

request

would

undermine important interests of the state where the information
is

located."

U.S.

at

Mem.

544 n.28).

Order at

2

The Court

(citing Societe Nationale,

482

found that Defendants had made

"numerous persuasive arguments for concluding that disclosure of
the requested files would 'undermine important interests' of the

-4-

PA.

II

For these reasons, the Court denied Plaintiffs' Motion to

Compel.

Id. at 3.

On June 20,

Plaintiffs moved to unseal the ex parte

2013,

explanatory memorandum Defendants submitted to aid the Court's
See Pls.' Mot. to Unseal

in camera review of the GIS documents.
and

for

Related

Relief

[Dkt.

No.

In

319-1].

that

Motion,

Plaintiffs characterized the Court's denial of their Motion to
Compel as being "primarily on the grounds that the GIS documents
are neither admissible nor relevant to plaintiffs' claims."
at 2.

Plaintiffs argued that "[t]he grounds for that Order took

plaintiffs
defendants'

by

surprise,

Opposition

and admissibility."
assessment
arguments

Process

of

thereto

Id.

relevant

Plaintiff

right

regarding

since

to

other

admissibility

was

Motion
of

and

they

respond

relevance,

than whatever

to
and

had

0

-5-

by

Based on this
an

"absolute

defendants'
any

other

specific

facts

Due

arguments
legal
the

finds too sensitive to be disclosed to the plaintiffs."
3

nor

relevance

influenced

ex parte memorandum.
that

see

plaintiffs'

briefed questions

argued

admissibility,

matter,

neither

Plaintiffs surmised that the Court's
and

in Defendants'

assumption,

factual

Id.

or

Court
Id. at

On November 27,
Plaintiffs'

2013,

the

Motion to Unseal.

consideration

of

documents fell

the

Court

issued an Order denying

The Court pointed out that its

relevancy

and

admissibility

of

the

GIS

squarely within the first factor of the Societe

Nationale comity analysis, which is "the importance to the .
litigation of the documents[.]"

Nov. 27 Am. Order at 2

(citing

Societe Nationale, 482 U.S. at 544).
The Court also explained that the basis for its assessment
of relevancy and admissibility was set forth in its Memorandum
Order denying the original Motion to Compel,

and that

"[t] here

was virtually no other information or argument in Defendants' ex
parte Memorandum referring to
Court described."
Thereafter,

[such issues]

other than what the

Id. at 3.
on

December

23,

2013,

Plaintiffs

filed

the

instant Renewed Motion for Production of PA GIS Documents and
Related Relief

("Renewed Motion)

2

[Dkt. No. 352] . 2

On January 6,

Plaintiffs made only the most perfunctory attempt to satisfy
the requirements of Local Rule 7(m) by emailing opposing counsel
on· a Sunday and, prior to receiving any response, filing this
Motion the following morning.
Such efforts clearly do not
satisfy Rule 7 (m) Is requirement that "counsel shall discuss the
anticipated motion with opposing counsel, either in person or by
telephone" and make a "good faith effort" to determine whether
there is any opposition to the relief sought.
L. R.
7 (m)
(emphasis added).
Nevertheless, because it is clear Defendants
would have opposed the Motion, and because Plaintiffs raise
-6-

2014,

Defendants

filed

their

Opposition

[Dkt.

No.

On

[Dkt . No. 3 57] . 3

January 16, 2014, Plaintiffs filed their Reply.
II.

356]

DISCUSSION

Plaintiffs

advance

four

arguments

in

support

of

their

Renewed Motion.
First, they claim that they are entitled to de novo review
of

the

Court's

admissibility

and

relevancy

determinations

because they were not afforded an opportunity to address these
issues in the original Motion to Compel.

Second, they argue, on

the merits, that the Court erred in concluding the GIS documents
are not

relevant or admissible.

Third,

they assert

that

the

Court clearly erred in extending comity considerations to the
Palestinian Authority.

Fourth,

they contend that

the Court's

weighing of the Societe Nationale factors merit reconsideration
in light of a subsequent development in a case currently pending
in the

Southern District of New York,

Sokolow v.

important arguments regarding due process,
address Plaintiffs' Motion on its merits.
3

the

Palestinian

Court

shall

In the meantime, o"n October 2, 2013, Plaintiffs filed their
Opposition to Defendants' Motion for Summary Judgment [Dkt. No.
336-1].
On October 25, 2013, Defendants filed their Reply to
Plaintiffs'
Opposition to
Defendants'
Motion
for
Summary
Judgment [Dkt. No. 341].
That Motion is now fully briefed and
pending before the Court.
-7-

Liberation Org.,
2013) .

No.

04 Civ.

397

(GBD)

(RLE)

(S.D.N.Y Nov.

4,

The Court addresses these arguments in turn.

A.

Standard of Review
1.

Plaintiffs Are Not Entitled to De Novo Review

Plaintiffs contend that they are entitled to de novo review
of the Court's conclusions regarding relevancy and admissibility
because they were not given an opportunity to brief these issues
Pls.' Mot. at 3 n.2.

in connection with their Motion to Compel.
This is inaccurate.
As

previously

denying Plaintiffs'

explained

in

the

Motion to Unseal,

Court's

Amended

Order

the Court considered the

relevancy and admissibility of the GIS documents solely in the
context

of

assessing

their

Societe Nationale framework.
that

the

Court

would

Motion to Compel.
brief,

to

the

case

under

the

Further, Plaintiffs were on notice

consider

these

issues

As discussed below,

which was not

filed a Reply,

importance

filed ex parte,

in

deciding

Defendants'

the

Opposition

and to which Plaintiffs

contested the relevancy and admissibility of the

GIS documents twice.
First,

in

discussing

the

qualified

law

enforcement

privilege, Defendants' Opposition brief observed that:
files
often
[I]nformation contained in
[GIS]
collected from sources outside the PA that are
-8-

is
of

varying degrees of reliability, and the information
may or may not be true and may or may not be based on
first-hand knowledge.
The raw intelligence
information in these files, of dubious reliability,
thus has little probative value to Plaintiffs' case.
On balance, these factors weigh in favor of nondisclosure
because
of
the
detrimental
effect
disclosure would have on GIS' work and the marginal
value of the GIS files to this case.
Defs.' Opp'n to Mot. to Compel at 8-9

(quotation marks omitted)

(emphasis added) .
Second,

in

discussing

the

Societe

Nationale

Defendants' Opposition brief again emphasized that,
be

evident

from

an

in

camera

review,

the

GIS

factors,

"[a] s would

files

are

[because]

marginal significance to the litigation

of

[w] i th

fact discovery closed, Plaintiffs still lack admissible evidence
as

to their theory

[that Abu Halawa

files do not change that equation."
Despite

the

fact

that

to

opportunity

them.
to

Because
address

the

The GIS

Id. at 9-10.

Defendants

arguments in their Opposition brief,
respond

shot Gilmore]

clearly presented these

Plaintiffs elected not to

Plaintiffs

have

relevancy,

already

had

admissibility,

one
and

importance of the documents, their attempt to now reargue these
points must be considered under the narrow standard of review
applicable to a motion for reconsideration.

-9-

2.

Standard Governing Motion for Reconsideration

"[W]here
decision,

litigants

they

should

reason permitted,
825

F.

marks

Supp.

2d

have
neither

to battle
58,

omitted) .

once

60

for

nor

it again."

(D.D.C.

Although

for

required,

be

battled

a

2011)
court

the

court's

without

Negley v.

good

F.B.I.,

(citation and quotation
has

the

discretion

reconsider an interlocutory order "as justice requires"

at

to
"any

time before the entry of a judgment adjudicating all the claims
and all the parties'
54 (b) ,

the Supreme

rights and liabilities[,]" Fed. R.
Court has

cautioned that

a

court

Civ.

P.

should be

"loathe to do so in the absence of extraordinary circumstances
such

as

where

the

initial

would work a manifest
Operating

Corp.,

decision was

injustice."

u.s.

486

clearly

erroneous

Christianson v.

800,

817

(1988)

Colt

and

Indus.

(citation

and

quotation marks omitted).
"In

particular,

a

court

should

grant

a

motion

for

reconsideration of an interlocutory order only when the movant
demonstrates

(1)

an

discovery

new

evidence

of

intervening
not

change

previously

clear error of law in the first

order."

Detainee

2d

Litig.,

706

F.

Supp.

-10-

120,

in

the

lawi

available i

(2)
or

the
(3)

a

In re Guantanamo Bay
122-23

(D.D.C.

2010)

(citation

and

quotation

reconsideration

is

not

theories upon which a
vehicle

for

an

has

A

to

or

arguments

S.E.C. v. Bilzerian,

for

motion

reargue

already ruled,"

theories

been advanced earlier."

B.

omitted) .

"opportunity

court

presenting

14 (D.D.C. 2010)

marks

facts

nor

that

is

and

it

could

"a

have

729 F. Supp. 2d 9,

(citations omitted).

The Motion Is Timely

Defendants

first

contend

that

Reconsideration is untimely.

Defs.'

true

than

Plaintiffs

waited

more

Motion

Plaintiffs'

While it is

Opp'n at 5-6.
six

months

for

after

the

Court

ruled on their Motion to Compel to file the instant Motion, _they
filed their Motion to Unseal on June 20,
after the Court's ruling.
that

they sought

order to

aid

Unseal at 3
respectfully,
Compel

are

to unseal

them

in

In that Motion,
Defendants'

filing

this

2013,

Plaintiffs explained

ex parte memorandum in

Motion.

See

Pls. '

Mot.

to

("Plaintiffs bring this motion because they believe,
that

the Court's rulings denying their Motion to

erroneous,

and

they

intend

reconsideration and reversal of those rulings.")
1] .

only two weeks

to

move

[Dkt.

No.

for
319-

Plaintiffs filed this Motion less than one month after the

Court resolved the Motion to Unseal.
is timely.
-11-

Consequently,

the Motion

c.

There Is No Basis to Reconsider the Court's Assessment
of the Importance of the GIS Documents

Plaintiffs
relevant"; 4
or

as

a

(2)

(3)

they

not

that

the

GIS

documents:

(1)

are

"highly

are admissible under various hearsay exceptions

sanction

documents;
are

argue

for

late

Defendants'

disclosure

of

the

are likely to lead to admissible evidence even if
themselves

considered by their expert

admissible;

and

( 4)

are

properly
Pls.'

regardless of admissibility.

Mot. at 3-10.
Each

and

every

one

of

these

arguments

could

have

been

advanced in Plaintiffs' Reply to Defendants' Opposition to their
Motion to Compel.

Plaintiffs do not offer any justification for

failing to do so,

nor do they point to any development

in the

record warranting a reconsideration of these issues. 5

4

Plaintiffs contend the documents are relevant to: (1) whether
Abu Halawa was Gilmore's shooter; (2) whether he was "known to
be involved in numerous terrorist activities against Israeli
targets during the same period"; (3) whether the shooting was
within the scope of Abu Halawa' s employment with the PA and
whether the PA knew that Abu Halawa was involved in terrorist
activities;
and
(4)
the
PA's
"policies
of
inciting
and
encouraging terrorism" during the relevant time period.
Pls.'
Mot. at 4-6.
5

Plaintiffs argue that their expert, Alon Eviatar, a former
intelligence officer with the Israel Defense Forces, is entitled
to consider the GIS documents in forming his opinions about the
case.
Pls. Mot. at 8-9.
Given that Plaintiffs have had since
-12-

Plaintiffs

also

misconstrue

Court's determination.
documents

the

reasoning

underlying

the

The Court has never suggested the ·GIS

lack any relevance whatsoever,

or would not,

absent

the special considerations present here,

be discoverable under

the

To

Federal

Rules

of

Civil

Procedure.

the

contrary,

the

Court acknowledged in its June 6 Memorandum Order that the files
include

information

about

the

National

Insurance

Institute

attack.

The Court concluded,· however, that the documents had no

great significance because they are both hearsay and duplicative
of

materials

reasons,

the

already

in

documents

establishing the

factual

Plaintiffs'
would

possession.

not

centerpiece

assist
of

their

For

these

Plaintiffs
case,

which

in
is

their contention that Abu Halawa killed Gilmore within the scope
of his employment for the PA.

Plaintiffs have not shown any

basis for the Court to reconsider this assessment.

September 19, 2012, at the latest, to obtain the opinion of an
expert, there does not appear to be any reason Plaintiffs could
not have made this argument in their Motion to Compel.
Further,
Eviatar' s
Declaration states
that,
even without
the
GIS
documents, he has formed the "conclusion with a high degree of
certainty," that Abu Halawa, a "known terrorist," murdered
Gilmore.
Declaration of Alon Eviatar ~ 9 [Dkt. No. 352 -2] .
Consequently, even if the Court were to consider Eviatar's
Declaration, it does not establish that the GIS documents are of
any outstanding importance to Plaintiffs' case.
-13-

D.

The Court Did Not "Clearly Err" by Considering the
Palestinian Authority's Interests as a Foreign
Government

Next,

Plaintiffs argue that the Court clearly erred in

concluding that comity considerations apply to the Palestinian
Authority

because

"the

principle

of

comity

only

foreign states and the PA is not a foreign state."
at

10.

Plaintiffs quote

a

sentence

applies

to

Pls.' Mem.

from Societe Nationale

in

which the Supreme Court observed that "[w]e have long recognized
the demand of comity in suits involving foreign states,

either

as parties or as sovereigns with a coordinate interest in the
litigation."
U.S.

522

Societe

at 546.

Nationale

Industrielle

Aeropastiale,

482

Plaintiffs highlight the Supreme Court's use

of the word "state" to argue that the Palestinian Authority is
not entitled to comity considerations because the United States
does not recognize it as a "state."
The

quoted portion from Societe Nationale

importance

of

protecting

burdensome discovery.
of the word "state"
define

precisely

protection.

litigants

from

the

unduly

The Court made it very clear that its use
in the quoted sentence did not delimit or

which

To the

foreign

emphasizes

foreign

contrary,

litigants

qualify

in the very next

Supreme Court stated:
-14-

for

sentence,

such
the

American
courts
should
therefore
take
care
to
demonstrate due respect
for any special problem
confronted by the foreign litigant on account of its
nationality or the location of its operations, and for
any sovereign interest· expressed by a foreign state.
We do not articulate specific rules to guide this
delicate task of adjudication.
Id.
no

(emphases added).
support

consider

for

the

Consequently,

Plaintiffs'

Palestinian

Societe Nationale provides

contention

Authority's

that

it

special

was

error

interests

as

to
a

foreign government.
Plaintiffs

also

cite

two

district

court

cases

for

the

proposition that the principle of deference to foreign law does
not apply to local, rather than national,
at 10-11
Area,

laws.

See Pl s. ' Mot.

(citing Young Women's Christian Ass'n of Nat.

Capital

Inc. v. Allstate Ins. Co. of Canada, 94 Civ. 741 JHG PJA,

1994 WL 661523 (D.D.C. Nov. 22, 1994) and Lyons v. Bell Asbestos
Mines,
are

Ltd.,

119 F.R.D.

inapposite

because

384,

389

(D.S.C.

the

Palestinian

1988)).
Authority

These cases
is

not

"local". government of the type at issue in the cited cases. 6

6

a
In

In Young Women's Christian Association, a Magistrate Judge in
this Court issued a Report & Recommendation concluding that the
blocking statutes of Quebec and Ontario were "not entitled to
any deferential consideration under the comity principles of
international law, " because, inter alia, they were "local laws
and not national laws."
Young Women's Christian Ass' n of Nat.
Capital Area, 1994 WL 661523, at *2. Lyons does not involve, as
this case does, a consideration of permissive deference, but
rather considered whether a district court was required to abide
-15-

addition,

these cases merely concluded that foreign local laws

were not entitled to deference;

they did not hold that a court

is not permitted to consider such laws in resolving a discovery
dispute.
case

is

Cf.

Fed.

binding

on

R.

Civ.

this

P.

26(b)(2)(C).

Court,

and

Further,

neither

neither

demonstrates

an

intervening change in the law.
In

sum,

Plaintiffs

have

not

established any grounds

for

reconsidering the Court's assessment that the PA's interests as
a foreign government warrant deference.
E.

Developments in the Sokolow Case Do Not Warrant
Reconsideration

Finally,

Plaintiffs argue that even if the Court properly

applied the Societe Nationale factors to the PA,

those factors

should be reconsidered in light of the fact that Defendants were
recently

ordered

Plaintiffs
"reasonably

argue

produce

to
that,

claim

as

a

that

GIS

documents

result,

Defendants

their

proprietary

in

Sokolow.

can no

longer

investigative

techniques will be revealed by production of GIS documents
this case."

in

Pls.' Mot. at 12.

by a foreign law restricting discovery.
Lyons, 119 F. R. D. at
389.
A determination that a district court is not required to
defer to a foreign law is a far cry from holding that it may not
consider such law in exercising its broad powers to supervise
discovery pursuant to Fed. R. Civ. P. 26(b) and (c).
-16-

As Defendants point out,

although Magistrate Judge Ellis'

Order in Sokolow post-dates this Court's June 6 Memorandum Order
denying Plaintiffs'

Motion to Compel,

have

documents

produced

development.

GIS
De f s . '

Compel ·in this case,
the U.S.

in

Opp' n at

the fact

other

that Defendants

cases

is

not

a

new

In their original Motion to

6.

Plaintiffs argued that "in other cases in

and in Israel,

the Defendants have provided GIS files

notwithstanding any claim of state secrets or other privileges."
Pls.' Mot to Compel at 13; see also Reply in Support of Mot. to
Compel ·at 10
would

not

compulsion,
at

a

("If GIS documents were really secret,
have

hundreds

in prior cases.") .

hearing

counsel

produced

on

Plaintiffs'

explained

that

to

Plaintiffs
production

now

any

and

defense

whether

decision

Compel,

to

produce

intelligence files are made by the PA on a
based on their content.

without

The Court addressed this topic
Motion

the

them,

of

defendants

case-by-case basis

Tr. 5/20/13 at 17:21-18:17.

argue

that

(approximately 330

the

pages)

scope
renders

of
it

the

Sokolow

"an extremely

new development" because defendants only made "small productions
of

GIS

documents

in other

cases."

Pls.'

Reply at

7.

This

assertion is directly contradicted by Plaintiffs' Reply brief in
support of

their Motion to Compel,
-17-

in which they argued that

Defendants had already "produced hundreds of
prior cases.

[GIS documents]" in

Reply in Support of Mot. to Compel at 10 (emphasis

added).
The GIS documents disclosed in the Sokolow case relate to
different

individuals

documents

at

basis

conclude

to

issue

and

in

different

this

that

case.

their

subject

matter

Consequently,

disclosure

moots

than

there
the

the

is

no

Court's

concerns regarding exposing specific individuals to threats and
increasing

the

risk

of

foreign governments.
No.

350] .

disrupting

See Nov.

Therefore,

the

27,

diplomatic
2013 Mem.

Sokolow

decision

relations

with

Order at 2

[Dkt.

does

not

justify

reconsideration of the Court's determination that disclosure of
the GIS documents will undermine important interests of the PA.
III. CONCLUSION

For

the

foregoing

reasons,

Plaintiffs'

Renewed

Motion

for

Production of PA GIS Documents will be denied.

Glgy~r~

March 24, 2014

United States District Judge

Copies to: attorneys on record via ECF
-18-