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COLLETT v. SOCIALIST PEOPLES' LIBYAN

November 23, 2005.

ELAINE L. COLLETT, et al., Plaintiffs,
v.
SOCIALIST PEOPLES' LIBYAN, ARAB JAMAHIRIYA, et al., Defendants.



The opinion of the court was delivered by: ALAN KAY, Magistrate Judge

MEMORANDUM OPINION

Pending before the Court are Plaintiffs' Motion to Compel Discovery and for Sanctions ("Motion") [34], Defendants' Opposition to Plaintiffs' Motion and Cross-Motion for Protective Order ("Defendants' Opposition/Cross-Motion") [35], Plaintiffs' reply to Defendants' Opposition ("Plaintiffs' Reply") [34]; Plaintiffs' opposition to the Cross-Motion ("Plaintiffs' Opposition") [37]; and Defendants' reply to the Motion ("Defendants' Reply") [39]. The Motion and the Cross-Motion relate to the scope of discovery in the instant case, following the trial court's March 24, 2005 Memorandum Opinion and Order [29, 28] allowing "jurisdictional discovery concerning Libya's provision of material support and resources to the Abu Nidal Organization. . . ." March 24, 2005 Order [28].

I. BACKGROUND

  Plaintiffs Elaine Collett, Karim Collett, David Collett, and Suzie Grant, individually and on behalf of the Estate of Alec Collett, seek damages arising out of the abduction of Alec Collett on or about March 25, 1985, his captivity for over a year, and his murder by hanging on or about April 17, 1986.*fn1 Plaintiff Elaine Collett is the surviving wife of Alec Collett; the other Plaintiffs are Mr. Collett's natural children. Defendants named in this case are the Socialist People's Arab Jamahiriya (hereinafter "Libya"); the Libyan Security Organization ("LESO"); Libyan leader Muammar Qadhafi ("Qadhafi"); the Abu Nidal Organization; and John Does 1-99, certain officials, employees, and agents of Libya, whose exact identities are unknown.

  Plaintiffs allege that Libya, LESO, Qadhafi and the John Does provided support to the Abu Nidal Organization, an international terrorist organization responsible for Mr. Collett's abduction, captivity and death. Plaintiffs further allege that the Defendants are subject to suit in the United States pursuant to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1605(a)(7). Plaintiffs assert that their claims for wrongful death, personal injury and related torts perpetrated by state sponsors of terrorism and their officials, employees, and agents fall within the meaning of 28 U.S.C. § 1605(a)(7), and 28 U.S.C. § 1605 note (the so-called "Flatow Amendment.")

  Plaintiffs filed their Complaint on October 9, 2001, and on November 13, 2002, the trial court granted a motion to stay pending jurisdictional discovery. Defendants filed a motion to dismiss the Complaint on May 15, 2003, on grounds of lack of subject matter and personal jurisdiction and failure to state a claim. On March 16, 2004, the trial court issued a Memorandum Order [15] denying without prejudice the Defendants' motion to dismiss and granting Plaintiffs leave to amend their Complaint. Plaintiffs subsequently filed their Amended Complaint [22] on April 16, 2004. On May 16, 2004, Defendants moved to dismiss the amended complaint for lack of subject matter and personal jurisdiction and failure to state a claim. In its March 24, 2005 Order [28], the trial court granted in part and denied in part the motion to dismiss and requested that the parties submit a joint jurisdictional discovery plan on or before April 25, 2005. In its Memorandum Opinion [29] accompanying the March 24, 2005 Order, the trial court found that "[Section] 1605(a)(7) requires a minimal showing that Libya provided material support to the Abu Nidal organization and that such support was the proximate cause of the plaintiff's injury." Memorandum Opinion [29] at 8. Accordingly, the trial court ruled that:
The defendants' challenge regarding the provision of material support and resources attacks the factual basis of the court's jurisdiction and requires the court to drop the assumption of truth that the court would otherwise afford the plaintiffs' complaint. Phoenix Consulting, 216 F.3d at 40. Such a dispute can only be resolved through the appropriate jurisdictional discovery. Wyatt, ___ F.Supp.2d ___, 2005 WL 517771 at *9 (ordering "jurisdictional discovery on the issue of Syria's alleged provision of material support and resources to [a terrorist organization]"). Accordingly the court will order the parties to submit a joint discovery plan regarding Libya's alleged provision of material support and resources to the Abu Nidal Organization.
Id.

  On April 25, 2005, the parties submitted their Joint Proposed Jurisdictional Discovery Plan ("Joint Discovery Plan") [31], noting that "[d]iscovery [was] to be had pursuant to all methods and procedures allowed under the Federal Rules of Civil Procedure and the Local Civil Rules of [this] Court. . . ." The Joint Discovery Plan also provided deadlines for initial Rule 26(a)(1) disclosures and expert disclosures. In a Minute Order dated April 26, 2005 [no docket number assigned], the Court adopted the Joint Discovery Plan and indicated that jurisdictional discovery closes on November 30, 2005.

  Plaintiffs now move to compel discovery from Defendants Libya and LESO. Plaintiffs contend that neither of these two defendants "has (1) produced a single document; (2) appeared for properly noticed depositions; (3) answered interrogatories in any meaningful, non-evasive way, or . . . sign[ed] their interrogatory responses, . . .; or (4) made any Rule 26(a) disclosures as agreed to in the Joint Proposed Jurisdictional Discovery Plan and required by this Court. . . ." Motion at 1. Defendants Libya and LESO contend that they do not have any documents, names of individuals or any other information which should be provided under Rule 26(a)(1) disclosure requirements. Defendants' Opposition/Cross-Motion at 8-9. Defendants Libya and LESO further allege that the scope of the discovery requested vastly exceeds the scope of discovery anticipated under the trial court's March 24, 2005 Order and allowed by the Federal Rules of Civil Procedure. Accordingly, Libya and LESO move for a protective order requesting that the Court restrict the Plaintiffs to the limited jurisdictional discovery contemplated by the Court and prohibit the Plaintiffs from deposing Libyan officials.

  II. LEGAL STANDARD

  Federal Rule of Civil Procedure 26(b) provides that discovery is permitted "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery . . ." Once a relevancy objection has been raised, the party seeking discovery must demonstrate that the information sought to be compelled is discoverable. See Alexander v. Federal Bureau of Investigation, 194 F.R.D. 316, 325 (D.D.C. 2000). If there is an objection based on undue burden, the objecting party must make a specific, detailed showing of how the discovery request is burdensome. See Chubb Integrated Systems Ltd. v. National Bank of Washington, 103 F.R.D. 52, 60-61 (D.D.C. 1984) ("An objection must show specifically how an interrogatory is overly broad, burdensome or oppressive, by submitting affidavits or offering evidence which reveals the nature of the burden.")

  Under Fed.R.Civ.P. 26(b)(2)(iii), the court may limit discovery on its own initiative, if it determines that the "burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issue at stake in the litigation, and the importance of the proposed discovery in resolving those issues." See Hammerman v. Peacock, 108 F.R.D. 66, 67 (D.D.C. 1985).

  Fed.R.Civ.P. 26(c) provides in part that:
Upon motion by a party or the person from whom discovery is sought . . . and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Pursuant to Rule 26(c), the court may direct "(1) that the disclosure of discovery not be had; (2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery."

  The party moving for a protective order bears the burden of making a showing of good cause required by Rule 26(c). See e.g. Alexander v. FBI, 186 F.R.D. 60, 64 (D.D.C. 1998); see also Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001) (holding that "complete prohibition of a deposition [is] an `extraordinary measure' which should be resorted to only in rare occasions.") (citation omitted). A trial court possesses broad discretion in issuing a protective order and determining what degree of protection is required. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984); see also United States v. Microsoft Corp., 165 F. 3d 952, 959 (D.C. Cir. 1996). The decision to limit or deny discovery by means of a Rule 26 protective order requires the court to balance "the requestor's need for the information from this particular source, its relevance to the litigation at hand, the burden of producing the sought-after material; and the harm which disclosure would ...


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