ESTATE OF ESTHER KLIEMAN et al v. PALESTINIAN AUTHORITY et al

Filing 238

MEMORANDUM OPINION AND ORDER that BBC's motion for reconsideration or, in the alternative, for certification for immediate appeal and for a stay 216 shall be held in abeyance; the plaintiffs shall file a status report within 14 days of completion informing the court of the materials disclosed; and this court's 9/19/13 order is stayed pending resolution of BBC's motion for reconsideration 216 . Signed by Judge Paul L. Friedman on February 21, 2014. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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v.
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PALESTINIAN AUTHORITY, et al.,
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Defendants.
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_________________________________________ )
ESTATE OF ESTHER KLIEMAN, et al.,

Civil Action No. 04-1173 (PLF)

MEMORANDUM OPINION AND ORDER
On September 19, 2013, the Court ordered the British Broadcasting Corporation
(the “BBC”) to provide to plaintiffs a copy of a 2003 BBC documentary and certain related
outtakes, accompanied by one or more affidavits attesting to the authenticity of those materials.
Order, Dkt. No. 210 (Sept. 19, 2013); see Estate of Klieman v. Palestinian Auth., 293 F.R.D. 235
(D.D.C. 2013). In its decision, the Court rejected the BBC’s argument that the “reporter’s
privilege” precluded compelled disclosure of these materials. Estate of Klieman v. Palestinian
Auth., 293 F.R.D. at 243. Although the Court recognized the BBC’s interest in protecting the
recordings from discovery, it found that the BBC’s interest was outweighed by the plaintiffs’
interest in disclosure, due to the relevance of the materials to plaintiffs’ case and the lack of
reasonably available alternative sources of that information. Id.
The BBC has moved for reconsideration, or in the alternative, for certification for
immediate appeal and for a stay of the Court’s decision. BBC Motion for Reconsideration, Dkt.
No. 216 (Oct. 17, 2013). For the reasons discussed below, the Court will hold the BBC’s motion

in abeyance pending resolution of a related discovery matter and will stay its September 19, 2013
Order during that time.
Magistrate Judge John M. Facciola, who is overseeing discovery in this case,
recently issued an order directing the defendants to provide “all documents in their possession,
custody, or control, which discuss any payments to families of persons denominated as martyrs
and include the words ‘Al Aqsa.’” Order at 6, Dkt. No. 226 (Jan. 6, 2014). As the BBC notes,
the information to be discovered pursuant to Magistrate Judge Facciola’s Order could serve as an
alternative source of information to the BBC video recordings. See BBC’s Supplemental Mem.,
Dkt. No. 228 (Jan. 9, 2014). If so, it may be appropriate for the Court to reconsider its decision
that the reporter’s privilege does not apply.
Plaintiffs argue that these documents “may not necessarily be a reasonable
alternative source for the documents sought by the Plaintiffs from the BBC.” Plaintiffs’
Response at 3, Dkt. No. 229 (Jan. 14, 2014) (emphasis added). The plaintiffs also note that
Magistrate Judge Facciola’s order is not final, as defendants have filed a motion for
reconsideration of that decision. Id. at 2-3; see Defendants’ Motion for Reconsideration, Dkt.
No. 230 (January 17, 2014).
In light of the uncertainty as to whether alternative sources of information are
reasonably available to plaintiffs, the Court finds that it is appropriate to hold the BBC’s motion
for reconsideration in abeyance until it is clear what Al-Aqsa related materials – if any – will be
disclosed by the defendants in discovery.
Accordingly, it is hereby
ORDERED that the BBC’s motion for reconsideration, or in the alternative, for
certification for immediate appeal and for a stay [Dkt. No. 216] shall be HELD IN ABEYANCE

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until such time as (a) the discovery ordered in Magistrate Judge Facciola’s January 6, 2014 Order
is complete, or (b) the January 6, 2014 Order has been vacated or otherwise amended; it is
FURTHER ORDERED that if and when the discovery ordered in Magistrate
Judge Facciola’s January 6, 2014 Order is complete, the plaintiffs shall file a status report within
fourteen days of completion informing the Court of the materials disclosed; and it is
FURTHER ORDERED that [Dkt. No. 210] this Court’s September 19, 2013
Order is STAYED pending resolution of [Dkt. No. 216] the BBC’s motion for reconsideration,
or in the alternative, for certification for immediate appeal and for a stay.
SO ORDERED.

DATE: February 21, 2014

/s/_______________________________
PAUL L. FRIEDMAN
United States District Judge

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