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Estate of Klieman v. Palestinian Authority

United States District Court, District Circuit

September 5, 2013

ESTATE OF ESTHER KLIEMAN, et al., Plaintiffs,
v.
THE PALESTINIAN AUTHORITY, et al., Defendants.

MEMORANDUM ORDER

JOHN M. FACCIOLA UNITED STATES MAGISTRATE JUDGE

In my Memorandum Order [#200] of May 15, 2013, I denied Plaintiffs’ Motion for Sanctions [#195] insofar as it was premised upon the Palestinian Authority’s (“PA’s”) not appearing for the April 10, 2013 deposition. [#200] at 3. I did not, however, rule on the motion insofar as it was premised upon the PA’s allegedly hiding and then belatedly producing certain documents. Id. As to that issue, I ordered the PA to file a response to plaintiffs’ claims. Id. I further directed plaintiffs to show cause why they should not pay the PA’s expenses for having to move for a protective order with respect to the April 10, 2013 deposition. Id. Both parties have responded and the issues are now ripe for resolution.

I. Plaintiffs’ Motion for Sanctions

A. The Parties’ Positions

Plaintiffs seek to have the PA[1] sanctioned for failing to produce certain documents in a timely fashion. Specifically, plaintiffs seek 1) a ruling by the Court that the documents at issue are authentic and admissible; 2) a ruling by the Court that an adverse inference will be allowed “for the [PA’s] hiding of the documents, late disclosure, and improper, dilatory and obstructionist conduct;” and 3) an award of attorney’s fees and costs. Plaintiffs’ Opposition with Points and Authorities to Defendants’ Motion for a Protective Order and Motion for Sanctions [#195] at 24.

The PA argues that plaintiffs’ request for sanctions regarding its January 30, 2013 production of documents should be denied both on procedural as well as substantive grounds. First, the PA contends that plaintiffs 1) failed to meet and confer with the PA prior to filing their motion for sanctions; 2) failed to include a certification in their motion, pursuant to Local Rule 7(m); and 3) failed to cite authority for their proposed sanctions. Defendant the Palestinian Authority’s Memorandum in Opposition to Plaintiffs’ Motion for Sanctions Regarding the January 30, 2013 Production of Documents [DE 198] [#202] at 2. Second, the PA contends that sanctions are inappropriate because the January 30, 2013 document production was not “late” and the PA did not willfully “hide” any responsive documents. Id. at 2.

B. Analysis

The following chart[2] provides a graphic illustration of the relevant events regarding discovery on the various topics at issue in this Memorandum Order.

Date

Description of Event

Citation

1/9/09

Plaintiffs sought “any and all documents, including any personnel file, that relate or refer to” Hussam, Tamer Rimawi, Hadib, and Hashash.

[#195-2] at 16.

3/31/09

[Previous deadline for close of fact discovery.]

Scheduling Order [#91] at 1.

9/30/09

[Previous deadline for close of fact discovery.]

Minute Order dated 6/12/09.

3/25/10

[Previous deadline for close of fact discovery.]

Order [#99] at 1.

9/30/10

[Previous deadline for close of fact discovery.]

Minute Order dated 3/15/10.

2/4/11

Plaintiffs sought issuance of a Hague Convention Letter of Request seeking documents relating to Zafer Rimawi.

Plaintiffs’ Motion for Issuance of Letters of Request [#120].

3/16/11

Court denies [#120] without prejudice.

Memorandum Order [#125].

3/31/11

[Previous deadline for close of fact discovery.]

Minute Order dated 9/20/10.

10/1//11

[Previous deadline for close of fact discovery.]

Memorandum Opinion [#124] at 12.

12/5/11

Court grants Plaintiffs’ Unopposed Motion to Extend the Deadline for the Completion of Fact Discovery [#133] to 3/31/12.

Minute Order dated 12/5/11.

12/13/11

Plaintiffs sought “[a] printout or screenshot of any official PA and/or PLO official website which references or at any time has ever referenced” Zafer Rimawi.

[#202-1] at 13-14.

12/31/11

[Previous deadline for close of fact discovery.]

Minute Order dated 9/30/11.

1/17/12

PA and PO filed objections to 12/13/11 requests.

[#202-1] at 14.

2/29/12

Plaintiffs sought documents reflecting payments by defendants to Zafer Rimawi and William Khatib, as well as any written requests by Rimawi and Khatib for payments from defendants.

[#202-2] at 11-12.

3/7/12

Plaintiffs sought issuance of a Hague Convention Letter of Request seeking a deposition of Zafer Rimawi.

Plaintiffs’ Motion for Issuance of Letter of Request [#147].

3/31/12

[Previous deadline for close of fact discovery.]

Minute Order dated 12/5/11.

4/2/12

PA and PO filed objections to 2/29/12 requests.

[#202-2] at 11-12.

6/6/12

Court grants plaintiffs’ motion for a Letter of Request to take the deposition of Zafer Rimawi and extends deadline for close of fact discovery to 12/31/12, for the limited purpose of taking the deposition of, inter alia, Zafer Rimawi.

Memorandum Opinion [#173] at 3-4; Order [#174] at 1.

10/12/12

With respect to Zafer Rimawi and William Khatib, plaintiffs sought “any and all documents and records in the Defendants’ possession, custody and control” including 1) “their personnel file(s);” 2) “all financial records relating to payments, made on their behalf or to any of their family members;” and 3) “the complete files from the Palestinian Authority’s Ministry of Detainees and Ex-Detainees (or any predecessor or successor entity thereto).”

[#195-3] at 7-8.

11/15/12

PA and PO filed objections to 10/12/12 request

Consolidated Memorandum of Points and Authorities (1) in Opposition to Plaintiffs’ Motion for Sanctions, and (2) in Reply in Support of Motion of Defendant the Palestinian Authority for Entry of a Protective Order [#198].

11/16/12

With respect to Zafer Rimawi, Tamer Rimawi, Ahmed Hadib, Hussam Halabi, and Annan Salim Hashash, plaintiffs sought all hard copies and digital/electronic files from the PA’s Preventive Security Services (“PPS”) and the PA’s General Intelligence Service (“GIS”).

Plaintiffs’ Opposition with Points and Authorities to Defendants’ Motion for a Protective Order and Motion for Sanctions [#194-1] at 1.

11/27/12

Plaintiffs noticed a Rule 30(b)(6) deposition to the PA regarding the GIS documents sought on 11/16/12.

[#195-6] at 8.

12/7/12

PA produced documents, including personnel records relating to Zafer Rimawi, to plaintiffs.

[#202] at 8.

12/21/12

Plaintiffs move to extend deadline for completion of fact discovery.

Plaintiffs’ Motion to Extend the Deadline for the Completion of Pending Fact Discovery Matters [#186].

12/31/12

[Previous deadline for close of fact discovery.]

Memorandum Opinion [#173] at 3-4; Order [#174] at 1.

1/30/13

PA again produced responsive GIS documents regarding Zafer Rimawi to plaintiffs.

[#202] at 8-9.

2/11/13

Court grants plaintiffs’ motion to extend deadline for completion of fact discovery to 4/15/13.

Memorandum Order [#190] at 8.

3/5/13

Deposition of Zafer Rimawi.

[#202] at 9.

4/15/13

Deadline for close of fact discovery.

[#190] at 8.

On February 4, 2011, plaintiffs first requested documents relating to Zafer Rimawi, when they sought a Hague Convention Letter of Request. That motion was denied by the Court on March 16, 2011, and never appealed by plaintiffs.

On December 13, 2011, plaintiffs again requested information about Zafer Rimawi, this time in the form of printouts or screenshots of any official PA or PLO website that referenced Zafer Rimawi. Defendants objected to the request and plaintiffs never moved to compel the information.

On February 29, 2012, plaintiffs once again requested information about Zafer Rimawi, this time requesting information about payments either made by defendants to him or requested by him of defendants. Once again, the defendants objected, and once again, plaintiffs never moved to compel the information.

Finally, on March 7, 2012, plaintiffs filed a motion for a Letter of Request to take Zafer Rimawi’s deposition and extended the deadline for the close of fact discovery. On June 6, 2012, the Court granted plaintiffs’ motion and extended the deadline for the close of fact discovery for the limited purpose of taking certain depositions, including that of Zafer Rimawi.

In the late fall of 2012, in another case in this Court, Shatsky v. The Palestinian Authority, Civil Action No. 02-2280 (RJL), the PA produced certain documents from the files of the PA’s General Intelligence Service (“GIS”). Memorandum of Points and Authorities in Support of Motion of Defendant the Palestinian Authority for a Protective Order Regarding Plaintiffs’ “Amended Supplemental Notice of Deposition of Defendant, Palestinian Authority” Dated March 29, 2013 at 7 ...


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