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Estate of Esther Klieman, et al v. the Palestinian Authority

June 6, 2012

ESTATE OF ESTHER KLIEMAN, ET AL., PLAINTIFFS,
v.
THE PALESTINIAN AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge

MEMORANDUM OPINION

This case was referred to me for discovery. Currently pending and ready for resolution are the following motions: 1) Plaintiffs' Motion for Issuance of Letter of Request [#146], 2) Plaintiffs' Motion for Issuance of Letter of Request [#147], 3) Plaintiffs' Motion to Extend the Deadline for the Completion of Fact Discovery [#148], 4) Plaintiffs' Motion and Memorandum in Support for an Order Compelling Discovery [#149], 5) Motion for Issuance of Letter of Request and Supporting Memorandum of Points and Authorities [#154], 6) Defendants' Cross-Motion for Entry of Protective Order [#158], and 7) Defendants' Motion for Leave to File a Sur-Reply in Support of Their Consolidated Opposition to Plaintiffs' Motions for Issuance of Letters of Request [DE 146] and [DE 147] [#167].

BACKGROUND

Plaintiffs are the survivors and heirs of Esther Klieman, an American citizen who was killed in Israel on March 24, 2002. Estate of Klieman v. Palestinian Authority, 272 F.R.D. 253, 255 (D.D.C. 2011). Tamer Rimawi was convicted in Israel of her murder and plaintiffs' theory is that the Palestinian Authority ("PA") and the Palestinian Liberation Organization ("PLO") supported, financially and otherwise, the Al-Aqsa Martyrs Brigade ("Al-Aqsa"), the terrorist group to which plaintiffs claim Tamer Rimawi belonged.

DISCUSSION

I. Plaintiffs' Motions for Issuance of Letters of Request [#146] & [#147]

A. Plaintiffs' Position

In these two motions, plaintiffs seek to take the de bene esse depositions of two individuals: 1) Yitzhak Ya'akoboff, the Israeli police officer who interviewed Tamer Rimawi about his involvement in the Klieman murder, [#146] at 3, and 2) Zafer Rimawi, the individual Tamer Rimawi originally claimed recruited him into Al-Aqsa [#147] at 3.

In support of their motions, plaintiffs cite first to the deposition testimony of Hussam Halabi, one of Tamer Rimawi's co-conspirators in the Klieman murder. Plaintiffs' Reply to Defendant's Consolidated Opposition to Plaintiffs' Motion for Issuance of Letters of Request [DE 146] and [DE 147] [#155] at 9-11. During the deposition, upon being shown a statement he had previously signed, Halabi again attested to the truthfulness of the statement. Id. at 10-11. In that statement, he explained that he and another man went with Tamer Ramawi, in a car driven by a third man, to Deir el Sodath. Id. at 10. According to Halabi, when they arrived at their destination, Tamer Ramiwi shot his Kalachnikov rifle at an armored bus. Id. Halabi stated further that this operation, like others he testified about, was "written under the name of Fatah (Al Aqsa Martyrs Brigades)." Id. at 10 (emphasis added). Klieman was, of course, the person killed as a result of Rimawi's shots at the bus.

Next, plaintiffs point to the testimony of Tamer Rimawi. During the investigation into the crime and the subsequent prosecution of the men who conspired to kill Klieman, Tamer Rimawi said 1) that he was recruited into Al-Aqsa by (inter alia) Zafer Rimawi and 2) that he was a member of Al-Aqsa when he killed Klieman. [#155] at 11-12. However, when Tamer Rimawi was deposed by plaintiffs in January 2012, he claimed that he was not a member of AlAqsa and that his earlier statement that Zafer Rimawi [and William Ktahib Rimawi] recruited him into Al-Aqsa was made solely to "to harm them." Id. at 12-13. Plaintiffs are therefore now concerned that Tamer Rimawi is retreating from his earlier statement that Zamer Rimawi and his accomplices recruited Tamer Rimawi into Al-Aqsa and that the murder of Klieman was an AlAqsa operation.

B. Defendants' Position

In response, defendants also point to the testimony of Halibi, wherein he indicated that Al-Aqsa is not a real phenomenon. [#167-1] at 3-4. Defendants also point to Halibi's testimony that Al-Aqsa is only a name, that it doesn't have a center, leadership, or headquarters, and that he was not a member. Id. at 4. Defendants therefore contend that Tamer Rimawi's recent statement that he did not belong to Al-Aqsa should not have come as a surprise to plaintiffs because Halibi had previously expressed that view. Id. at 4-5.

C. Analysis

A simple evaluation of the potential testimony of Ya'akoboff and Zamer Rimawi demonstrates its potential admissibility. If plaintiffs introduce the statements Tamer Rimawi gave first to the police officer and then to the Israeli court (that he was a member of Al-Aqsa and that killing Klieman was an Al-Aqsa operation) in order to establish that Al-Aqsa was supported by defendants thereby rendering defendants complicit in her murder, defendants could then introduce Halibi's statement that Al-Aqsa does not exist. Plaintiffs would then have to be permitted to show, by calling Zamer Rimawi to testify, that Al-Aqsa certainly did exist and that he recruited Tamer Rimawi into the organization to perform operations like the one that killed Klieman. As to the latter testimony, while it may be fanciful to suppose that Zamer Rimawi would give testimony that would help plaintiffs succeed in getting a judgment against defendants, the fact that he was identified by Tamer Rimawi as the person who recruited him into Al-Aqsa surely meets the standard of relevance with respect to plaintiffs' case.

II. Motion for Issuance of Letter of Request and Supporting Memorandum of Points and Authorities [#154]

A. Plaintiffs' Position

In this motion, plaintiffs seek to take the de bene esse deposition of Israeli prisoner Annan Aziz Salim Hashash, an alleged member of Al-Aqsa who was involved in the murder of Klieman. [#154] at 1. Plaintiffs contend that his deposition is necessary to further establish his involvement in Klieman's ...


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