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Gilmore v. Palestinian Interim Self-Government Auth.

United States District Court, D. Columbia.

March 24, 2014

REUVEN GILMORE, et al., Plaintiffs,
v.
PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants

Page 2

For REUVEN GILMORE, individually, as the Administrator of the estate of Esh Kodesh Gilmore and as natural guardian of plaintiffs Eliana Gilmore and Dror Gilmore, DROR GILMORE, minor, by his next friends and guardians Reuven Gilmore and Zehave Sheila Gilmore, ELIANA GILMORE, minor, by her next friends and guardians Reuven Gilmore and Zehava Sheila Gilmore, HEFTIZBAH GILMORE, TIFERET GILMORE, MALKITZEDEK GILMORE, TALYA GILMORE, minor, by her next friend and guardian Inbal Gilmore, INBAL GILMORE, individually and a natural guardian of plaintiff Talya Gilmore, ZEHAVA SHEILA GILMORE, individually, as the Administrator of the estate of Esh Kodesh Gilmore and as natural guardian of plaintiffs Eliana Gilmore and Dror Gilmore, Plaintiffs: Noel Jason Nudelman, Richard D. Heideman, Tracy Reichman Kalik, LEAD ATTORNEYS, HEIDEMAN NUDELMAN & KALIK, P.C., Washington, DC; Norman Steiner, LEAD ATTORNEY, LAW OFFICES OF NORMAN STEINER, New York, NY; Robert Joseph Tolchin, LEAD ATTORNEY, THE BERKMAN LAW OFFICE, LLC, Brooklyn, NY.

For PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, also known as PALESTINIAN NATIONAL AUTHORITY, also known as PALESTINIAN AUTHORITY, PALESTINE LIBERATION ORGANIZATION, Defendants: Brian Andrew Hill, LEAD ATTORNEY, MILLER & CHEVALIER, CHARTERED, Washington, DC; Laura G. Ferguson, LEAD ATTORNEY, Miller & Chevalier Chartered, Litigation, Washington, DC; Mark J. Rochon, LEAD ATTORNEY, MILLER & CHEVALIER, Washington, DC; Richard A. Hibey, LEAD ATTORNEY, MILLER & CHEVALIER CHARTERED, Washington, DC.

For UNITED STATES OF AMERICA, Movant: Jeffrey Michael Smith, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.

Page 3

MEMORANDUM OPINION

Gladys Kessler, United States District Judge.

Plaintiffs are family members and the estate of Eish Kodesh Gilmore, a United States national killed in a shooting on October 30, 2000, in Jerusalem, Israel (" Plaintiffs" ). They bring this case against Defendants, the Palestinian Interim Self-Government Authority (" PA" ) and the Palestine Liberation Organization (" PLO" ) (collectively, " Defendants" ) pursuant to the Anti-Terrorism Act of 1991 (" ATA" ), 18 U.S.C. § 2331, et seq., and related common law theories.

This matter is before the Court on Plaintiffs' Renewed Motion for Production of PA GIS Documents and for Related Relief [Dkt. No. 352]. Upon consideration of the Motion, Opposition [Dkt. No. 356], and Reply [Dkt. No. 357], the entire record herein, and for the reasons stated below, Plaintiffs' Motion shall be denied.

I. BACKGROUND

Eish Kodesh Gilmore was shot and killed on October 30, 2000, at the beginning of the Second Intifada, while working as a security guard at the Jerusalem branch office of the Israeli National Insurance Institute. Plaintiffs allege that PA employee Muhanad Abu Halawa shot Gilmore, and that three other agents of the PA and PLO, Mustafa Misalmani, Bashar Al-Khatib, and Mahmoud Damara, helped in planning and carrying out the attack.[1]

Plaintiffs filed this case on April 18, 2001. Discovery commenced on March 22, 2010. See Memorandum Order, dated Mar. 22, 2010 [Dkt. No. 181]. On August 9, 2012, Defendants moved for summary judgment, arguing that " [a]t the close of fact discovery - and after deposing Misalmani, Al-Khatib, and Damara, among others - Plaintiffs still have no admissible evidence to take to a jury supporting their lynchpin allegation that Abu Halawa shot Gilmore." Defs.' Mot. for Summ. J. at 2 [Dkt. No. 285]. Plaintiffs did not initially file an Opposition to Defendants' Motion for Summary Judgment but instead moved for additional time to complete discovery pursuant to Fed.R.Civ.P. 56(d), which the Court granted on September 19, 2012. [Dkt. No. 297].

Six months later, on March 19, 2013, Defendants sought to resume briefing on their Motion for Summary Judgment, noting that the additional discovery Plaintiffs requested under Rule 56(d) had either been completed or was at a standstill [Dkt. No. 298].

While that Motion was pending, on April 19, 2013, Plaintiffs filed a Motion to Compel Production of Late-Disclosed Documents. [Dkt. No. 303]. Plaintiffs sought files created by the PA's General Intelligence Service (" GIS" ) pertaining to Abu Halawa, Damara, and Misalmani, the existence of which Defendants had recently disclosed to Plaintiffs, and which Defendants were withholding on the basis of the

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" state-secrets" and law enforcement privileges. After Plaintiffs' Motion to Compel had been fully briefed, the Court directed Defendants to submit the files to the Court for in camera review. With the Court's permission, Defendants also submitted an ex parte explanatory Memorandum to aid the Court's review.

On June 6, 2013, after reviewing the documents in camera, the Court denied Plaintiffs' Motion to Compel. See Memorandum Order, dated June 6, 2013 [Dkt. No. 314]. The Court first explained that " [n]owhere in the 25 pages submitted by Defendants is there any admissible evidence that would be relevant to Plaintiffs' case." Id. at 2. Elaborating on this point, the Court noted that the documents largely post-dated the National Insurance Institute attack and, to the extent they mentioned the attack, did not constitute admissible evidence. Further, the information in the documents was duplicative of materials already in Plaintiffs' possession. Id.

Next, the Court explained that, " in considering whether to compel disclosure of documents where such disclosure" is prohibited under the laws of the foreign government in possession of them, a court should be guided by the factors set forth in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct., 482 U.S. 522, 107 S.Ct. 2542, 96 L.Ed.2d 461 (1987). Among these factors is " the extent to which . . . compliance with the request would undermine important interests of the state where the information is located." Mem. Order at 2 (citing Societe Nationale, 482 U.S. at 544 n.28). The Court found that Defendants had made " numerous persuasive arguments for concluding that disclosure of the requested files would 'undermine important interests' of the PA." For these reasons, the Court denied Plaintiffs' Motion to Compel. Id. at 3.

On June 20, 2013, Plaintiffs moved to unseal the ex parte explanatory memorandum Defendants submitted to aid the Court's in camera review of the GIS documents. See Pls.' Mot. to Unseal and for Related Relief [Dkt. No. 319-1]. In that Motion, Plaintiffs characterized the Court's denial of their Motion to Compel as being " primarily on the grounds that the GIS documents are neither admissible nor relevant to plaintiffs' claims." Id. at 2. Plaintiffs argued that " [t]he grounds for that Order took plaintiffs by surprise, since neither plaintiffs' Motion nor defendants' Opposition thereto briefed questions of relevance and admissibility." Id. Plaintiffs surmised that the Court's assessment of relevant and admissibility was influenced by arguments in Defendants' ex parte memorandum. Based on this assumption, Plaintiff argued that they had an " absolute Due Process right to see and respond to defendants' arguments regarding admissibility, relevance, and any other legal or factual matter, other than whatever specific facts the Court finds too sensitive to be disclosed to the plaintiffs." Id. at 3.

On November 27, 2013, the Court issued an Order denying Plaintiffs' Motion to Unseal. The Court pointed out that its consideration of the relevancy and admissibility of the GIS documents fell squarely within the first factor of the Societe Nationale comity analysis, which is " the importance to the . . . litigation of the ...


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