Ashton, et al v. Al Qaeda Islamic, et al

Filing 930

OPINION AND ORDER re: (3822 in 1:03-md-01570-GBD-SN) MOTION for Sanctions, filed by Plaintiffs PI Executive Committee, Plaintiffs Executive Committees, (3827 in 1:03-md-01570-GBD-SN) MOTION to Compel Muslim World League and International Islamic Relief Organization to Produce Responsive Documents, filed by Plaintiffs Executive Committees. The PECs' motion for sanctions (ECF No. 3822) is DENIED as untimely. In addition, the PECs' motion to compel (ECF No. 3827) is GRANTED in part and DENIED in part. Within 60 days of the date of this Opinion and Order, MWL and IIRO are ORDERED to search all of the branch offices that they have not already searched and produce any banking records from those offices and any documents falling within the categories identified in the Court's April 12, 2011 Order. MWL and IIRO are not required to search for any other documents at this time. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 3822 and 3827. (Signed by Magistrate Judge Sarah Netburn on 8/27/2018) Filed In Associated Cases: 1:03-md-01570-GBD-SN et al. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In re:

8/27/2018

03-MD-1570 (GBD)(SN)
TERRORIST ATTACKS ON
SEPTEMBER 11, 2001

OPINION AND ORDER

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SARAH NETBURN, United States Magistrate Judge:
On December 1, 2017, the Plaintiffs’ Executive Committees (“PECs”) filed a motion to
impose sanctions on Defendants Muslim World League (“MWL”) and International Islamic
Relief Organization (“IIRO”). ECF No. 3822. The PECs also filed a motion to compel MWL and
IIRO to produce various categories of documents. ECF No. 3827. The motion for sanctions is
DENIED, and the motion to compel is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiffs served initial document requests on MWL and IIRO in 2005 and served several
supplemental document requests on the organizations over the years that followed. ECF No.
3825 at 2; ECF Nos. 3829-1, 3829-2, 3829-3, 3829-4, 3829-5, 3829-6, 3829-7, 3829-8. MWL
and IIRO note that Plaintiffs have served a total of 275 requests, many of which include various
subparts. ECF No. 3585 at 3. The PECs contend that MWL’s and IIRO’s responses to Plaintiffs’
discovery requests were generally deficient between 2005 and 2012. ECF No. 3825 at 2–3. The
PECs also assert that during that time period, MWL and IIRO’s counsel, Mr. Martin McMahon,
misrepresented that MWL and IIRO had already produced all responsive documents, misstated
the manner in which records were kept in MWL’s and IIRO’s branch offices, produced the same
documents multiple times, and blamed his clients’ discovery failures on language barriers and a
purported lack of familiarity with the U.S. judicial system. Id. at 3, 8. MWL and IIRO point out

that Mr. McMahon does not read or speak Arabic and relied heavily on MWL and IIRO staff to
review documents written in Arabic, even though the staff had “little understanding of the tasks
they were being asked to perform.” ECF No. 3858 at 3.
In early 2011, Plaintiffs filed two motions to compel MWL and IIRO to produce certain
categories of documents. See ECF No. 3829-23. On April 12, 2011, the parties appeared before
the Honorable Frank Maas, who ordered MWL and IIRO to search for and produce documents
falling into eight specific categories. Id. at 39–42. At subsequent conferences, Judge Maas issued
further orders directing MWL and IIRO to search for additional categories of documents. See
ECF No. 3825 at 2–3. The PECs claim that MWL and IIRO remained largely noncompliant with
the Court’s orders and Plaintiffs’ requests. Thus, in August 2011, Plaintiffs filed a motion
requesting that the Court impose case-dispositive sanctions on MWL and IIRO. See id. at 3–4.
During a conference held on November 16, 2011, Judge Maas stated that although he might be
open to imposing less severe sanctions, including an award of attorneys’ fees, he was not
prepared to grant the dispositive sanctions that Plaintiffs requested. ECF No. 3826-86 at 15–16,
24–26. Judge Maas also directed MWL and IIRO to search all of its branch offices for
documents responsive to Plaintiffs’ requests and warned that an inadequate search “may lead to
dispositive sanctions.” Id. at 15–16.
In late 2012, MWL and IIRO retained Lewis Baach PLLC as counsel to assist in
searching for and producing documents in compliance with the Court’s orders and Plaintiffs’
requests. ECF No. 3857 at 1–2. Using a team of U.S. attorneys fluent in Arabic, the firm
conducted a large-scale search and gathered documents from 17 branch offices in 14 countries.
Id. at 2. MWL and IIRO produced nearly 500,000 pages of records and produced indices that
purportedly organize the documents by specific categories of document requests. Id. at 2, 18.

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Nevertheless, on December 1, 2017, the PECs filed another motion for sanctions and another
motion to compel MWL and IIRO to produce various categories of documents. ECF Nos. 3822,
3827. The PECs argue that the Court should impose sanctions on MWL and IIRO for “their
pattern of blatant and material misrepresentations to plaintiffs and the Court, and their consistent
disregard for multiple Court orders.” ECF No. 3825 at 1. In addition, the PECs contend that
MWL and IIRO “have failed to produce scores of documents that are responsive to plaintiffs’
document requests and, in many cases, fall within the scope of prior orders issued by this Court
compelling production of documents in specified categories.” ECF No. 3828 at 2. Thus, the
PECs ask the Court to compel MWL and IIRO to produce additional documents. Id.
LEGAL STANDARD
Federal Rule of Civil Procedure 26(b)(1) states that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “A party may serve on any other
party a request” to produce documents within the scope of Rule 26(b). Fed. R. Civ. P. 34(a).
“The responding party must produce documents sought in each request or ‘state an objection to
the request, including the reasons.’” Pegoraro v. Marrero, 281 F.R.D. 122, 132 (S.D.N.Y. 2012)
(quoting Fed. R. Civ. P. 34(b)(2)). “A party seeking discovery may move for an order
compelling an answer, designation, production, or inspection” if “a party fails to produce
documents . . . as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B). “If a party or a party’s
officer, director, or managing agent . . . fails to obey an order to provide or permit discovery,
including an order under Rule . . . 37(a), the court where the action is pending may issue further
just orders.” Fed. R. Civ. P. 37(b)(2)(A).

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SANCTIONS
First, the PECs ask the Court to impose sanctions on MWL and IIRO pursuant to Federal
Rule of Civil Procedure 37 for allegedly failing to produce responsive documents and
misrepresenting that the organizations had produced all responsive documents at various points
between 2005 and 2011. ECF No. 3825 at 7–19. “[A] motion for Rule 37 sanctions should be
promptly made, thereby allowing the judge to rule on the matter when it is still fresh in his
mind.” Mercy v. Suffolk County, 748 F.2d 52, 55 (2d Cir. 1984). “While Rule 37 does not
establish any time limits within which a motion for sanctions must be filed, unreasonable delay
may render such motions untimely.” Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879,
886 (S.D.N.Y.), on reargument, 187 F.R.D. 148 (S.D.N.Y. 1999). Instead of filing their motion
promptly, the PECs waited to bring their motion for sanctions until more than six years after
MWL’s and IIRO’s alleged misconduct. This is most certainly an unreasonable delay.
The PECs contend that they waited to bring their motion for sanctions because (1) “as
plaintiffs received more documents from MWL-IIRO the scope of their prior misconduct and
misrepresentations became even clearer,” (2) “plaintiffs did not want to take any action that
would chill the production of additional documents,” and (3) “plaintiffs believed they had a
claim that the amount of the sanctions was to be based upon how grievous the error, including
how long MWL-IIRO took to correct the error.” ECF No. 3825 at 5 n.5. These excuses for the
delay are unavailing. Courts impose sanctions “to achieve the orderly and expeditious disposition
of cases.” Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (quoting Link v.
Wabash R.R., 370 U.S. 626, 630–31 (1962)). Indeed, as the PECs acknowledge, “an award of
sanctions under Rule 37 should effectuate its three purposes: (1) obtaining compliance with
discovery orders; (2) ensuring the disobedient party does not benefit from non-compliance; and

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(3) providing a general deterrent in the particular case and litigation in general.” Nieves v. City
of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002). The PECs should have sought sanctions
years ago, and if MWL and IIRO continued to be noncompliant with their discovery obligations,
the PECs could have asked the Court to impose more severe sanctions. But because the PECs
waited to file their sanctions motion until many years after the alleged misconduct and after
document discovery closed, any sanctions the Court imposes now would do little to obtain
compliance with the Court’s discovery orders and would hardly serve as a deterrent to future
misconduct.
Moreover, at this point, the discovery issues underlying the PECs’ motion for sanctions
are far from being fresh in the Court’s mind. See Mercy, 748 F.2d at 55. Judge Maas, who dealt
with these discovery disputes more than seven years ago, has now retired from the bench. The
PECs ask me to dig into a voluminous record from seven to thirteen years ago to decipher
whether and to what extent MWL and IIRO failed to comply with their discovery obligations and
made misrepresentations about their production. Thereafter, I am expected to gauge the
appropriate sanctions for misconduct that allegedly occurred nearly a decade ago under another
judge’s supervision. Such an endeavor would be time-consuming, inefficient, and nearly
impossible to conduct with any degree of accuracy. Thus, the Court will not engage in that
exercise. The PECs’ motion for sanctions is DENIED as untimely.
MOTION TO COMPEL
I.

Branch Offices
The PECs contend that MWL and IIRO have not searched all of the organizations’

branch offices for those branches’ banking records and the categories of documents identified in
the Court’s April 12, 2011 Order. ECF No. 3828 at 4. In response, MWL and IIRO note that they

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only “agreed to facilitate attorney reviews of branch offices with reasonable connections to
allegations made in Plaintiffs’ complaint . . . consistent with the proportionality standard of the
Federal Rules.” ECF No. 3857 at 16. MWL and IIRO also point out that “[a] search of every
office, including offices with no connection to Plaintiffs’ allegations—Argentina and Brazil, for
instance—would be unduly burdensome, unlikely to yield useful information and not
proportional to the needs of this case.” Id. at 17 (footnote omitted).
But during the November 16, 2011 conference, the Court directed MWL and IIRO to
search for records located at all of their branches:
It also seems to me that the request, unless Mr. Carter tells me otherwise, extends
to each branch of the organization. And to the extent that there are nonduplicative
files in the branches, those have to be produced, whether it’s burdensome or not.
This whole case is about money being diverted toward terrorist goals. As I
understand it, the lion’s share of the effort is to see where money went. So the
notion that this is a lot of paper or bytes of information and therefore burdensome,
Mr. McMahon, doesn’t really resonate to me. . . .
Except to the extent that the two sides can agree that some branch office is not
relevant, if each branch office is not queried and the documents from that branch
produced, as far as I’m concerned that will have been an inadequate search and may
lead to dispositive sanctions.
ECF No. 3826-86 at 15–16. The Court will not allow MWL and IIRO to relitigate an issue that
has already been decided. Thus, within 60 days of this Opinion and Order, MWL and IIRO are
ORDERED to search every branch office that has not already been searched (unless the parties
can agree that a branch is not relevant) and produce any banking records from those offices and
any documents that fall within the categories identified in the Court’s April 12, 2011 Order. In
light of the parties’ discussions in 2013 and continuing conversations in 2016 about the branch
offices that should be included in the search, the plaintiffs are strongly encouraged to evaluate
whether it is truly necessary for MWL and IIRO to search all of their branch offices or whether a
search of a more targeted group of branch offices will be sufficient.
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II.

Other Document Requests
The PECs also contend that MWL and IIRO have failed to produce responsive

documents that fall within various other categories of requests, including records relating to the
organizations’ committees, boards, councils, and internal bodies; records from audits and internal
investigations; records concerning senior officials of MWL and IIRO; communications with
Saudi government ministries and embassies; records concerning the Rabita Trust and Al
Haramain Al Masjed Al Aqsa; and records concerning MWL’s and IIRO’s alleged support for
jihadist universities. ECF No. 3828 at 4–18. For each of these categories, however, the PECs
summarily conclude that MWL’s and IIRO’s productions have been incomplete, and the PECs
speculate that there must be more documents that MWL and IIRO have not yet produced.
Although the PECs point to various records suggesting that there might be more documents, the
PECs have not offered any concrete evidence showing that there are actually more documents in
MWL’s and IIRO’s possession and control that the organizations have failed to produce.
Furthermore, MWL and IIRO note that they retained Lewis Baach PLLC in 2012 to
conduct a massive search for documents responsive to the PECs’ voluminous requests.
According to MWL and IIRO, “dozens of overseas trips were taken by a team of U.S. attorneys
fluent in Arabic to review and gather records from 17 offices scattered across 14 countries and
over 300 days have been spent reviewing an estimated 2 million pages of documents,
predominately in Arabic.” ECF No. 3857 at 2 (footnotes omitted). As a result of these efforts,
MWL and IIRO have produced nearly 500,000 pages of records responsive to the PECs’
requests. Id. MWL and IIRO also point to documents that have been produced in response to
categories of requests that the PECs have identified as deficient, and the organizations provide
reasoned explanations for the small numbers of documents that were located in certain

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categories. Id. at 6–15. Apart from their failures to search all of their branches for documents (as
discussed above), MWL and IIRO have adequately searched for documents responsive to the
Court’s prior orders and the PECs’ requests.
III.

Organization of the Documents
Finally, the PECs argue that the documents MWL and IIRO have produced are largely

disorganized and that the indices MWL and IIRO provided to help identify responsive
documents are relatively useless. ECF No. 3828 at 19–20. But the PECs do not offer any
suggestions on how this issue should be ameliorated or what actions the Court should take in
response. See id. It is unclear how the parties can address this purported lack of organization at
this late stage in the discovery process. Moreover, MWL and IIRO have made good faith efforts
to assist the PECs in reviewing the numerous documents that were produced. MWL and IIRO
have provided the PECs with indices that organize the documents by specific categories of
discovery requests, have provided additional information regarding the provenance of certain
documents, and have identified individual documents that are responsive to specific requests.
ECF No. 3857 at 18–19. Accordingly, any relief the PECs seek with respect to the purported lack
of organization of MWL’s and IIRO’s documents is DENIED.
CONCLUSION
The PECs’ motion for sanctions (ECF No. 3822) is DENIED as untimely. In addition, the
PECs’ motion to compel (ECF No. 3827) is GRANTED in part and DENIED in part. Within 60
days of the date of this Opinion and Order, MWL and IIRO are ORDERED to search all of the
branch offices that they have not already searched and produce any banking records from those
offices and any documents falling within the categories identified in the Court’s April 12, 2011

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Order. MWL and IIRO are not required to search for any other documents at this time. The Clerk
of Court is respectfully directed to terminate the motions at ECF Nos. 3822 and 3827.
SO ORDERED.

DATED:

August 27, 2018
New York, New York

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