Sokolow et al v. Palestine Liberation Organization et al

Filing 372

MEMORANDUM OPINION & ORDER: For the foregoing reasons, Tolchin is hereby ORDERED TO SHOW CAUSE by November 8, 2013, why personal sanctions, including under 28 U.S.C. § 1927, should not be imposed upon him for intentionally violating the Protective Order. (Signed by Magistrate Judge Ronald L. Ellis on 10/24/2013) (rsh)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELECfRONICALLY
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FILED

DATe FI'~iE~D~:-=-'D---Z-Y:---:..B-­

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

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

Plaintiffs are family members, guardians, and personal representatives of the estates of
United States citizens who were allegedly killed and injured in terrorist attacks in Jerusalem,
Israel, between January 8, 200 I, and January 29, 2004. Defendants are the Palestine Liberation
Organization ("PLO"), the Palestinian Authority ("P A"), and several individuals Plaintiffs allege
were responsible for planning and carrying out the killings and injuries. Plaintiffs bring suit
under the Anti-Terrorism Act of 1991 ("ATA"), 18 U.S.C. § 2331 et seq., for international
terrorism, and related torts. On March 1 20 I

after protracted discussions and objections, the

Court imposed a Protective Order Regarding Confidentiality of Discovery Material ("the
Protective Order" or "the Order") (Doc. No. 219). Before the Court is Defendants' request to
sanction Plaintiffs and/or their counsel, Robert Tolchin, for violating the Protective Order. On
October 15,2013, the Court held a teleconference with the Parties to conduct a factual inquiry.
Although the Court will not impose sanctions at this time, Tolchin is ORDERED TO SHOW
CAUSE why personal sanctions, including under 28 U.S.C. § 1927, should not be imposed upon

him for intentionally violating the Protective Order.

II. BACKGROUND
Defendants claim that Tolchin violated the Protective Order when he disclosed
employment information regarding two employees of the PAin a Declaration filed before the
United States District Court for the District of Columbia. Pursuant to the Protective Order, the
Parties may not disclose information that is designated "Confidential." (Doc. No. 219

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2(f).)

Portions of discovery material that "relate to personal private financial or employment
information" may be designated "Confidential." (Id.

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2(a).) The Protective Order sets forth a

detailed procedure that parties may employ to challenge the "Confidential" designation. (ld.

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14.)
This dispute arises from an allegation by Tolchin that Defendants' witness proffered false
testimony in an unrelated case. The unrelated case, Gilmore v. Palestinian Interim Self­

Government Authority, No. 01-853 (GK) ("Gilmore"), is legally and factually distinct from
Sokolow, but the Gilmore Plaintiffs have named many of the same Defendants, and are also
represented by Tolchin. Gilmore is pending before the United States District Court for the
District of Columbia.
On September 9,2013, Tolchin emailedDefendants.counsel.Brian Hill, regarding a
discrepancy between testimony submitted in Gilmore, and documents produced as part of
discovery in Sokolow. (Letter from Defendants, October 4,2013, Ex. 2 at 2.) Tolchin alleged
that one of Defendants' witnesses had offered false testimony in Gilmore. (Id.) In support of his
allegation, Tolchin cited the witness's deposition testimony in Gilmore, and compared it to
contrary information contained in the Sokolow discovery documents. (Id.) The Sokolow
documents had been designated by Defendants as "Confidential." In his email to Hill, Tolchin
stated: "We find it troubling that defense counsel failed to inform the Gilmore plaintiffs or the
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Court of these facts when they became known to you ..." (Id.) Tolchin further admonished Hill
for having "improperly designated all of the aforementioned documents, in their entirety, as
'confidential,' purportedly under the Protective Order ... even though the information contained
in those documents is not 'confidentiaL'" (Id.) Tolchin requested that Defendants remove the
confidentiality designations in the relevant documents. (Id.) On September 12,2013, Hill
responded: "Defendants do not agree to your request." ([d. at 1.) The Court has not received any
indication that Tolchin responded to Hill's September 12 email.
Nearly three weeks later, on October 1,2013, Tolchin submitted a "Declaration of Robert
1. Tolchin" ("Declaration") via ECF in Gilmore in which he wrote:
2. Documents filed by the Palestinian Authority ("PA") in the Sokolow case from its
own files, including documents bates numbered 02:009501-9504 and 02:009642­
9652, which defendants have improperly marked as "confidential" (and so cannot be
submitted in Gilmore at this time), show that contrary to his deposition testimony in
the instant case [CONFIDENTIAL IN FORMATION].
3. The documents, which are marked confidential in Sokolow and cannot be placed
before this Court at this time due to the terms of the confidentiality order, detail the
[CONFIDENTIAL INFORMATION] and contradict the defendant's assertion ...
. The defendants should not be permitted to use that confidentiality order as a sword
and a shield, advocating a position they know is false while hiding behind the
obscurantist designation of incriminating documents that would refute their position
as 'confidential.' If defendants' counsel do not promptly inform this Court of the
truth of [CONFIDENTIAL INFORlV1ATION] , which is their duty as officers ofthis
Court, the plaintiffs will seek appropriate relief
4. Defendants have also produced documents in the Sokolow Case showing that
[CONFIDENTIAL INFORMATION]. Defendants have improperly marked these
documents as "confidential" (and so they cannot be submitted in Gilmore at this
time), despite the fact that [CONFIDENTIAL INFORMATION] is not confidential
and is also referenced in his statement of April 16, 2002 to the Israeli police.
(Declaration of Robert 1. Tolchin,

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2-4.)

On October 4,2013, Hill submitted a letter to the Court requesting an informal
conference, pursuant to Local Civil Rule 37.2 and this Court's Individual Practice Rule 2.A, to
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determine whether Tolchin had violated the Protective Order. (Letter from Defendants, October
4,2013 at 1.) On October lO, 2013, Tolchin responded. In his defense, he stated: (I) the
Declaration does not violate the Protective Order because Tolchin was "extremely careful to
describe [the documents] in the most general terms without disclosing any even arguably
confidential information"; and (2) the Court should instead sanction defense counsel for abusing
the Protective Order. (Letter from Plaintiffs, October 10, 2013 at 1.) Further letters were
exchanged, and, on October IS, 2013, the Court held a teleconference to conduct a factual
inquiry into the allegations of both attorneys' misconduct When asked why he did not
challenge the confidentiality designation before the Court rather than risk violating the
Protective Order, Tolchin said that he did not think it was necessary because he framed the
Declaration in a manner to avoid revealing confidential information, and the information was
improperly designated "Confidential" in the first place. He further asserted that, because of a
deadline in the Gilmore case, he was running out of time and did not believe he could convince
the Court to change the confidentiality designation on a short time-frame.

III. DISCUSSION
A.

Avenues Available to Tolchin
Tolchin's Declaration undoubtedly contains employment information regarding

Defendants' witness. Tolchin nevertheless insists that he did not violate the Protective Order
because his Declaration "states a very brief and limited description of the documents to alert the

Gilmore Court to the existence of the documents and their relevance to the Gilmore case."
(Letter from Plaintiffs, October 14,2013 at I.) This assertion is meritless. His Declaration in

Gilmore clearly revealed the substance of the documents marked "Confidential" in this case.
Rather than pursuing appropriate means to challenge the testimony in Gilmore, Tolchin decided

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to violate the terms of the Protective Order, apparently believing that he had a good defense, or
that Defendants did not have "clean hands" and could not enforce the Order. The Order,
however, was endorsed by the Court, and self-help was not an option for Tolchin. Tolchin
suggests that he had no other options or not enough time to exercise such options. This position
is also meritless.
1.

New York Rules of Professional Conduct Rule 3.3

The New York Rules of Professional Conduct require that lawyers conduct themselves
professionally and with honesty. Rule 3.3 (Conduct Before a Tribunal) forbids lawyers from
"knowingly mak[ingJ a false statement of fact or law to a tribunal." N.Y. Rules of Prof' I
Conduct R. 3.3 (a)(l) (2013). It additionally provides that a lawyer must not "knowingly offer
or use evidence that the lawyer knows to be false." Id. at (a)(3). It continues: "If a lavv),er, the
lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer
comes to know of its falsity, the lavv)'er shall take reasonable remedial measures, including, if
necessary, disclosure to the tribuna1." Id. at (a)(3). Subsection (c) states that these duties" apply
even if compliance requires disclosure of information otherwise protected by Rule 1.6," which
prohibits the disclosure of confidential information. Id. at (c).
Tolchin complained to Hill on September 9 that Defendants' witness's "testimony at his
deposition was unquestionably false." (Letter from Defendants, October 4,2013, Ex. 2 at 2.) He
found it "troubling that defense counsel failed to inform the Gilmore plaintiffs or the Court of
these facts when they became known to you." (fd.) If these allegations are true, Tolchin knew
as early as September 9 that there were potential ethical obligations triggered. He should have
urged Hill to reveal the information to the Court under Rule 3.3, or under a similar provision in
the District of Columbia. If Hill failed to comply, Tolchin could have moved in Gilmore or in
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this case seeking sanctions based on this misbehavior.
2.

Protective Order ~ 14

Tolchin need not look further than the Protective Order that he signed for another avenue
to bring the matter to the Court's attention. The Protective Order provides:
14. Objections to Designations: A Hlilure to challenge the propriety of a
"Confidential" designation at the time the material is produced shall not preclude a
subsequent challenge to such designation. In the event a party objects to the
designation of any material under this Order by another party or by a non-party, the
objecting party shall first consult with the disclosing/producing party or non-party
to attempt to resolve the differences. If no accord is reached as to the proper
designation of the material, the objecting party shall, on notice to the other party or
non-party and any other designating party or non party [sic], apply to the Court for
a ruling that the material shall not be so treated. If such application or motion is
made, the producing party or non-party, and any other designating party, will have
the burden to establish that the designation is proper. If no such motion is made
within 10 days of the objection to the designation, the material will remain as
designated.
(Doc. No. 219 ~ 14.)
As manifested by To1chin's September 9 email to Hill, Tolchin complied with the first
step of the objections procedure by consulting with Hill in an attempt to resolve the differences.
(Letter from Defendants, October 4,2013, Ex. 2 at 2.) However, after no accord was reached on
September 12, To1chin did not contact the Court. Instead, he let the ten days lapse, thus
apparently forfeiting his opportunity to challenge the designation under this provision. J
3.

Local Civil Rule 37.2

When a discovery dispute arises in a case pending before the Southern District of New
York, the party seeking to raise the dispute must first request an informal conference with the
Court before filing a motion. See S.D.N.Y. Local Civil Rules 26.4,37.2. Rule 2.A of my
I As counsel for the Gilmore plaintiffs, Tolchin sought to intervene in this case for the sole purpose of
challenging the "Confidential" designation. This attempt to avoid the ten-day appeal period only served to prolong
the proceedings.

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Individual Practice Rules provides: "[f]or discovery motions, follow Local Civil Rule 37.2."
In his September 9 email, Tolchin raised a discovery dispute with Hill. (Letter from
Defendants, October 4,2013, Ex. 2 at 2.) He pointed out that Defendants' witness's testimony
in Gilmore contradicted documents produced in Sokolow. (ld.) Hill dismissed Tolchin's
accusation as "irrelevant" and "immaterial." (Id. at 1.) After receiving Hill's email, Tolchin
could have filed a letter in this Court, pursuant to Local Civil Rule 37.2 and Individual Practice
Rule 2.A, requesting a conference. He could have simultaneously filed a letter in the United
States District Court for the District of Columbia, where Gilmore is pending, under an analogous
local rule. In those letters, he could have explained to the Courts the discrepancy between the
two documents, and asked both courts to direct him to resolve the conflict. He did not make any
drort to bring the matter to the Court's attention. Instead, Hill was the one who requested a
conference. (Letter from Defendants, October 4, 20l3, at 1.)

IV. CONCLUSION
For the foregoing reasons, Tolchin is hereby ORDERED TO SHOW CAUSE by
November 8, 20l3, why personal sanctions, including under 28 U.S.C. § 1927, should not be
imposed upon him for intentionally violating the Protective Order.

SO ORDERED this 24th day of October 2013
New York, New York

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The Honorable Ronald L. Ellis
United States Magistrate Judge

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