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, )

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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-

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