Sokolow et al v. Palestine Liberation Organization et al

Filing 255

MEMORANDUM OPINION & ORDER re: 157 MOTION to Compel BBC to Comply With Subpoena filed by Dianne Coulter Miller, Shayna Eileen Gould, Robert L. Coulter, Jr., Jamie A. Sokolow, Yaakov Moshe Goldberg, Eliezer Simcha Goldberg, Yitzhak Shalom Goldberg, Larry Carter, Esther Zahava Goldberg, Varda Guetta, Shaul Mandelkorn, Shmuel Waldman, Rena M. Sokolow, Elana R. Sokolow, Shaun Coffel, Elise Janet Gould, Nurit Mandelkorn, Henna Novack Waldman, Morris Waldman, Daniel Bauer, Mark I. Sokolow, Alan J. B auer, Richard Blutstein, Leonard Mandelkorn, Tzvi Yehoshua Goldberg, Shoshana Malka Goldberg, Katherine Baker, Jessica Rine, Rebekah Blutstein, Eva Waldman, Yehonathon Bauer, Robert L. Coulter, Sr., Lauren M. Sokolow, Oz Joseph Guetta, Norman Gritz, Revital Bauer, Karen Goldberg, Binyamin Bauer, Nevenka Gritz, Chana Bracha Goldberg, Ronald Allan Gould, Yehuda Bauer, 143 MOTION to Quash Plaintiffs' Subpoena to Testify at a Deposition in a Civil Action dated August 9, 2011 of The British Br oadcasting Corporation filed by Subpoenaed Non-Party The British Broadcasting Corporation. For the foregoing reasons, the BBC's Motion to Quash the Subpoena is DENIED, and the Plaintiffs' Cross- Motion to Compel BBC to Comply is GRANTED, in part, and DENIED, in part. BBC is directed to produce the outtakes of the interviews with the specified individuals. It is not compelled to produce a witness to testify as to the authenticity of the documentary or outtakes. However, BBC shall furnis h the outtakes with written affidavits from knowledgeable witnesses as to the authenticity of the documentary and outtakes. The outtakes and the accompanying affidavit(s) shall be provided to the Plaintiffs on or before September 17, 2012. This Order resolves Docket # 143 and Docket # 157. (Signed by Magistrate Judge Ronald L. Ellis on 9/6/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
91

MARK I. SOKOLOW, et at,
Plaintiffs,
MEMORANDUM
OPINION & ORDER
04 Civ. 397 (GBD) (RLE)

- againstPALESTINE LIBERATION ORGANIZATION, et aI.,
Defendants.
RONALD L. ELLIS, United States Magistrate Judge:
I. INTRODUCTION

Before the Court is a Motion to Quash a Subpoena to TestifY at a Deposition brought by
non-Party the British Broadcasting Corporation ("the BBC"). (Doc. No. 148.) Plaintiffs seek to
compel the BBC to comply with its subpoena, served on August 9, 2011, to provide the
foHowing to Plaintiffs: (1) an authentic copy of a BBC documentary entitled "Arafat
Investigated"; (2) authentic copies of certain specific recordings created while preparing the
documentary but not included in the documentary (i.e., "outtakes"); and (3) foundational
deposition testimony from a knowledgeable employee of BBC regarding the authenticity of the
documentary and the outtakes, and the manner in which they were created and stored by BBC,
for the purpose of establishing their admissibility as "business records" (i.e., a standard "records­
keeper deposition"). (Pis.' Mem. in Opp. To BBC's Mot. to Quash Subpoena and in Supp. Of
PIs.' Mot. to Compel ("PIs.' Mem."), Doc. No. 158.) The BBC objects to the subpoena on
several grounds, but primarily because the subpoena violates the territorial restrictions under
Federal Rule of Civil Procedure 45. The BBC further asserts that compelling compliance with
the subpoena would compromise its independent editorial judgment, and disrupt its newsgathering functions. (Mem. of Law of BBC in Supp. of Mot. to Quash Subpoena ("BBC

Motion"), Doc. No. 148 at 7.) For the reasons set forth below, the BBC's Motion to Quash the

Suhpoena is DENTF~n. in part. Plaintiffs' Cross-Motion to Compel compliance with the
subpoena is GRANTED, in part, and DENIED, in part.

II. BACKGROUND
The Court assumes general familiarity with the facts of the above-captioned matter.
Plaintiffs are U.S. citizens who were killed or irUured in several terrorist attacks in or near
Jerusalem, Israel, and bring a civil action pursuant to the Antiterrorism Act, 18 U.S.C. § 2333,
and other causes of action, against Defendants Palestine Liberation Organization ("PLO") and
Palestinian Authority ("PA"). (Doc. No.4 at 'Iff 49-125.) Primarily, Plaintiffs assert that the PA
and PLO funded the terrorist organizations, namely "AI-Aksa Brigades," that were involved in
the alleged terrorist attacks, and that these terrorist organizations were effectively Defendants'
officials, agents, and employees. (ld) Plaintiffs also assert that AI-Aksah is operated by the
Fatah faction of the PLO and that the PA and the PLO, under the leadership and direction of
Vasser Arafat, are liable for the attack. ( ld)
The British Broadcasting Corporation is a British public service provider, and its
"independent news programs are among the many types of programming it provides." (BBC
Mot. at 2.) In 2003, the BBC broadcast a program titled "Arafat Investigated," which broadcast
interviews with several individuals, including Ata Abu Rumaileh, the leader of Fatah in the West
Bank city of Jenin, and with Zakaria Zubaidi, an alleged AI-Aksa Brigades terrorist leader in
Jenin. Jd In these published interviews, both individuals made statements about AI-Aksa
Brigades being a part of Fatah and ofYasser Arafat controlling AI-Aksa Brigades. (PIs.' Mem. at
3-5.)

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A.

The First Subpoena
Plaintiffs: originally issued the

suhpoena from the Eastern District of New York,

ostensibly because Plaintiffs' counsel's offices are located in Brooklyn and, thus, the subpoena
had to be issued from the court in the district in which the deposition is to take place. (PIs.'
Mem. at 6, n. 4.) The BBC filed its Motion to Quash the Subpoena in the Eastern District, and
then-Magistrate Judge Andrew L. Carter granted Plaintiffs' subpoena in Saperstein v.

Palestinian Auth., 09-MC-00619 SLT ALC, 2010 WL 1371384 (E.D.N.Y. Apr. 6,2010),
vacated (Dec. 16, 2010). The order was vacated on December 16, 2010 after Plaintiffs withdrew
the subpoena and issued it from this District. (ld)
B.

The Instant Subpoena
Plaintiffs then proceeded to serve the subpoena at issue on August 9, 2011, noticed for

August 25, 2011, from the Southern District of New York. The subpoena, which is nearly
identical to the proposed subpoena in the Eastern District, seeks the complete, unedited
interviews of Abu Rumaileh and Zubaidi ("outtakes"), as well as the deposition of a witness to
establish that "both the documentary and the outtakes (a) are true copies of the original records
and (b) were generated, stored and copied in such a manner as satisfies the business records
exception under Fed.R.Evid. 803(b)." (PIs.' Mem. at 7.)

Plaintiffs assert that the outtakes are

requested because, if the Plaintiffs were to introduce the documentary interviews as evidence at
trial, "defendants will undoubtedly seek to object on the grounds that the interviews appearing in
the documentary are not complete recordings but merely segments." (PIs.' Mem. at 7.)
According to the Plaintiffs, the outtakes of the interview footage are relevant to the issue of
whether Fatah and AI-Aqsa are one in the same entity. If Fatah, which is part of the PLO, is
connected to AI-Aqsa's activities, then the Plaintiffs can obtain relief from the Defendants.
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Plaintiffs claim the outtakes may be relevant to establishing this connection to the case. (Pis.'

Mem at 5.6.) Accordingly, Plaintiffs claim the outtakes are needed because the interviews
contain "extremely probative statements that are highly relevant to plaintiffs' case." (ld.) BBC
objects strenuously to production of the outtakes footage as falling under the journalist privilege.
BBC has already produced the broadcast version of the program to Plaintiffs, but has claimed the
journalist privilege, arguing that allowing for disclosure of the outtakes sought would disrupt
BBC's newsgathering activities and compromise its independent editorial jUdgment. (BBC Mot.
at 7-8.)
With regard to the deposition of a BBC records-keeper, Plaintiffs claim that they require
testimony from "a knowledgeable employee of BBC regarding the authenticity of the
documentary and the outtakes" to establish that the documentary and outtakes are true copies of
the original records and to establish the material as business records under Federal Rule of
Evidence 803(6). (Id.) The BBC asserts that the deposition of one of its employees for the
purpose of establishing the business records exception is burdensome and would violate the
territorial restrictions found in Federal Rule of Civil Procedure 45.

III. DISCUSSION
A.

The BBC outtakes are non-confidential information and Plaintiffs have shown
sufficient relevance and necessity of the outtakes to overcome tbe journalist
privilege.
Federal Rule of Civil Procedure 45 allows the court to modify or quash a subpoena

served on a third party that requires disclosure of privileged or other protected material.
Journalists enjoy a qualified privilege that protects newsgathering efforts. See Gonzales v.
National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999). Issuing subpoenas to journalists and

news organizations on a regular basis would "preempt the otherwise productive time of
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journalists and other employees but measurably increase expenditures for legal fees." Id. at 33­

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The privilege extends to both confidential and non-confidential information, but the
standard for overcoming the journalist privilege for non-confidential information is much less
stringent. !d. at 36. Confidential information will not be disclosed absent a "clear and specific
showing" by the requesting party that the information is: (1) "highly material and relevant"; (2)
necessary or critical to the maintenance of the claim"; and (3) "not obtainable from other
available sources." In re Petroleum Products Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982). Non­
confidential information also has some measure of protection from disclosure by the journalist
privilege. The litigant seeking the information must show that the materials are: (1) "of likely
relevance to a significant issue in the case"; and (2) "not reasonably obtainable from other
available sources." Gonzales, 194 F.3d at 36. Therefore, when the journalist privilege is
invoked, the Court must first determine whether the information sought is confidential or non­
confidential. Then, it must apply the applicable test for determining whether the party seeking
the information has met the burdens imposed to overcome the journalist privilege.
Here, the outtakes requested are not confidential material, because the BBC is free to
disseminate any portions of the interviews, and the BBC has not asserted the outtakes to be
confidential. The outtakes are of "likely relevance" because the footage in question may contain
information that links Fatah to AI-Aqsa. Although the Court is skeptical of a "smoking gun"
presenting itself in these outtakes, the standard for relevance to overcome the journalist privilege
for non-confidential materials is low, and the outtakes meet this lower standard of "likely
relevance" to a significant issue in the case.
Further, the material sought is "not reasonably obtainable from other available
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resources." The BBC asserts that Plaintiffs have not exhausted other resources for material, and

claim Defendants themselves would be in possession of the information sought, including the
interviewees at issue.
The Plaintiffs have agreed to limit the subpoena to the outtakes of those two individual
interviews specifically, and the BBC has not detailed how burdensome the production of the
outtakes would be. The BBC is directed to produce the outtakes.

B.

A deposition is precluded under Rule 45 Territorial Restrictions, and would be
unnecessarily burdensome to the BBC.
Federal Rule of Procedure 45(c)(3)(A)(ii) provides that "the issue court must quash or

modify a subpoena" that "requires a person who is neither a party nor a party's offIcer to travel
more than 100 miles from where that person resides, is employed or regularly transacts business
in person." This restriction is imposed to protect non-party witnesses from being subjected to
burdensome and excessive discovery in litigation in which the witnesses have little or no
interest. In re Edelman, 295 F.3d 171, 178 (2d Cir. 2002).
Here, the BBC has asserted it does not have any witnesses in the United States who may
speak to the authenticity of the documentary or the outtakes. (BBC Mot. at 11.) Additionally,
any witnesses would be at least 100 miles outside of Rule 45's territorial restrictions. Despite
Plaintiffs' willingness to conduct the deposition in London, the Court does not find sufficient
necessity to compel production of an individual's testimony to be taken in another country. This
would be burdensome to non-party BBC, and is unnecessary. Rather, the BBC is directed to
produce an affidavit confirming the authenticity of the outtakes and as business records.

IV. CONCLUSION
For the foregoing reasons, the BBC's Motion to Quash the Subpoena is DENIED, and

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the Plaintiffs' Cross-Motion to Compel BBC to Comply is GRANTED, in part, and DENIED,

in Dart. BBC is directed to oroduce the outtakes ofthe interviews with the specified individuals.
It is not compelled to produce a witness to testifY as to the authenticity of the documentary or
outtakes. However, BBC shall furnish the outtakes with written affidavits from knowledgeable
witnesses as to the authenticity of the documentary and outtakes. The outtakes and the
accompanying affidavit(s) shall be provided to the Plaintiffs on or before September 17,2012.
This Order resolves Docket # 143 and Docket # 157.

SO ORDERED this 6th day of September 2012
New York, New York

The Honorable Ronald L. Ellis
United States Magistrate Judge

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