United States District Court, D. Columbia
SHABTAI SCOTT SHATSKY, individually and as personal
representative of the Estate of Keren Shatsky, JO ANNE
SHATSKY, individually and as personal representative of the
Estate of Keren Shatsky, TZIPPORA SHATSKY, YOSEPH SHATSKY,
SARA SHATSKY, MIRIAM SHATSKY, DAVID SHATSKY, GINETTE LANDO
THALER, individually, as personal representative of the
Estate of Rachel Thaler and as natural guardian of Leor
Thaler and Zvi Thaler, minors, MICHAEL THALER, individually,
as personal representative of the Estate of Rachel Thaler and
as natural guardian of Leor Thaler and Zvi Thaler, minors,
ISAAC THALER, HILLEL TRATTNER, RONIT TRATTNER, ARON S.
TRATTNER, SHELLEY TRATTNER, STEVEN BRAUN, YEHIEL FRIEDMAN,
ZVI FRIEDMAN, BELLA FRIEDMAN, individually and as next friend
and natural guardian of Chana Friedman, Ilan Friedman, and
Miriam Friedman, minors, ALL PLAINTIFFS, Plaintiffs: Abbe
David Lowell, LEAD ATTORNEY, CHADBOURNE & PARKE LLP,
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.
PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY,
also known as PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY,
also known as PALESTINIAN NATIONAL AUTHORITY, Defendants:
Alexandra E. Chopin, John A. Burlingame, Mitchell R. Berger,
LEAD ATTORNEY, SQUIRE PATTON BOGGS (U.S.) LLP, Washington,
DC; Brian Andrew Hill, Charles FrancisBenedict McAleer, Jr.,
Mark J. Rochon, Richard A. Hibey, LEAD ATTORNEY, MILLER &
CHEVALIER, CHARTERED, Washington, DC; Amy L. Brown, SQUIRE
PATTON BOGGS LLP, Washington, DC; Gassan A. Baloul, PRO HAC
VICE, SQUIRE PATTON BOGGS (U.S.) LLP, Washington, DC; Laura
G. Ferguson, MILLER & CHEVALIER CHARTERED, Washington, DC.
OPINION (November 20, 2015) [#270]
J. LEON, United States District Judge.
aftermath of a February 16, 2002 suicide bombing in the
Samaria region of the West Bank, plaintiffs, the victims and
personal representatives of United States citizens injured
and killed in the attack, initiated the instant suit against
the Palestinian Authority and the Palestinian Liberation
(collectively, " defendants" ) for alleged
violations of the Anti-Terrorism Act, 18 U.S.C. § 2333
et seq., and related torts. See Compl.
[Dkt. #3]. Since its inception, this case has been a study in
obfuscation and recalcitrance. The parties have, at times,
accused each other of every manner of skullduggery--from
gamesmanship to wholesale deceit. Plaintiffs' conduct,
however, has been a major source of this discord. Indeed, the
docket itself is an ample, if not an overwhelming, testament
to plaintiffs' consistent failure to honor the mainstay
of federal practice: " the just, speedy, and inexpensive
determination of every action and proceeding."
See Fed.R.Civ.P. 1. Their unfortunate tactics have
not escaped judicial notice. In its thirteen years presiding
over the case, this Court has been witness to plaintiffs'
casual, if at times flagrant, disregard for the rules of
federal procedure, to say nothing of their apparent
indifference to the dictates of common civility. And yet,
however fraught its trajectory, that remains the state of
motion presently before the Court, defendants seek to exclude
eighty-nine exhibits that, together, form the cornerstone of
plaintiffs' opposition to summary judgment. See
Defs.' Mot. for Sanctions (" Defs.' Mot." )
[Dkt. #270]; Mem. of P. & A. in Supp. of Defs.' Mot. for
Sanctions (" Defs.' Mem." ) [Dkt. #270-1].
Plaintiffs, unsurprisingly, oppose this request. See
Pls.' Revised Mem. of P. & A. in Opp'n to Defs.'
Mot. for Sanctions (" Pls.' Opp'n" ) [Dkt.
#274]. Upon careful review of the pleadings, the case law,
and the entire record herein, the Court GRANTS in part and
DENIES in part defendants' Motion for Sanctions and
PRECLUDES plaintiffs from using any documents that they
produced to defendants after the September 19, 2012
close of discovery.
case has a particularly long and tortured history, and the
Court, in the interests of economy, will briefly recount only
those portions of the record relevant to the instant dispute.
In September 2011, and on joint motion of the parties, the
Court entered a scheduling order, mandating the completion of
fact discovery by September 19, 2012. See Order
¶ 5 [Dkt. #136]. On March 9, 2012, approximately six
months before the close of discovery, plaintiffs served
defendants with their First Request for Production.
See Pls.' Opp'n Ex. 3 [Dkt. #272-3].
Defendants began producing documents shortly thereafter and,
by August 2012, had furnished approximately 50 pages of pages
of material. See Pls.' Opp'n at 9.
On August 20, 2012, less than a month before the discovery
deadline, plaintiffs served on defendants 111 supplemental
document requests seeking additional categories of
documents. See Pls.' Opp'n at 9;
Defs.' Mem. at 16. Defendants began producing documents
in response to plaintiffs' supplemental requests on
October 21, 2012. Pls.' Opp'n at 10-11; Pls.'
Opp'n Ex. 11 [Dkt. #272-11]; Pls.' Opp'n Ex. 13
[Dkt. #272-13]. That same month, plaintiffs, eager to obtain
the discovery that they had waited until the eleventh hour to
seek, began peppering the Court with discovery motions,
seeking all manner of relief from the strictures of a
discovery deadline to which they themselves had consented.
See, e.g., [Dkts. #168, #169, #172, #175, #181,
#197]. By minute orders dated December 8, 2012 and January 2,
2013, the Court rejected each and every application, finding
plaintiffs' motions both meritless and untimely.
See Dec. 8, 2012 Min. Order; Jan. 2, 2013 Min.
August 3, 2012, defendants, in the midst of their own
document production, propounded
their First Requests for Production. Defs.' Mot. Ex. 29
[Dkt. #270-32]. By the close of discovery on September 19,
2012, plaintiffs had produced approximately 3,000 pages of
material in response to defendants' requests.
See Defs.' Mot. 20. This proved to be just the
beginning of their discovery efforts. Indeed, in the weeks,
months, and even years after discovery closed, plaintiffs
furnished an additional 6,627 pages of materials--an
astonishing 69% of their total production--inundating the
record with relevant documents well into dispositive motions
practice. Defs.' Mem. at 20.
on June 26, 2013, and once again on joint motion by the
parties, the Court set a summary judgment briefing schedule,
ordering the commencement of summary judgment by August 12,
2013. See June 26, 2013 Min. Order.
The Court plainly, and in its view, fairly, interpreted the
parties' request for a dispositive motions schedule as a
joint acknowledgment that discovery was complete.
See Mem. Order at 7 n.6 [Dkt. #266]; see
id. at 9 (clarifying that " all discovery in
this matter is CLOSED!" ).
on August 12, 2013, defendants filed a motion for summary
judgment. Defs.' Mot. for Summ. J. [Dkt. #247].
Plaintiffs opposed summary judgment on November 12, 2013.
Mem. of Law in Opp'n to Defs.' Mot. for Summ. J.
(" plaintiffs' summary judgment opposition" )
[Dkt. #252]. Appended to their opposition was the Declaration
of Attorney Robert J. Tolchin (the " Tolchin
Declaration" ), which plaintiffs use as a vehicle to
authenticate reams of late-produced documents referenced in
their brief. Among the hundreds of supporting exhibits that
plaintiffs filed with their brief were: (1) Israeli court and
police records, (2) PFLP website materials, (3) A1 Jazeera
broadcasts, (4) United States newspapers and official
reports, and (5) a small number of documents produced by the
defendants in this action. Presently at issue are eighty-nine
of the exhibits to plaintiffs' summary judgment
opposition, seventy-three of which plaintiffs first disclosed
to defendants after the September 19, 2012 close of
fact discovery. See Defs.' Suppl. Mem. in
Further Supp. of their Mot. for Sanctions Ex. A [Dkt.
#317-1]. Of these seventy-three exhibits, sixty-four were
first disclosed by plaintiffs after the Court's January
2, 2013 Minute Order denying plaintiffs' requests for
additional discovery. See id. Twenty-five exhibits
consist of documents appended to plaintiffs' stricken
Rule 26(a)(2) expert reports. Id. Three
exhibits consist of documents that were withdrawn by
plaintiffs pursuant to the parties' April 16, 2013
agreement. A further twenty-five exhibits contain
documents that plaintiffs produced after defendants filed
their Motion for Summary Judgment in August
2013. See id.
December 26, 2013, defendants, troubled by what they viewed
as a calculated attempt to thwart their defense, filed a
motion for sanctions, seeking to exclude eighty-nine of
plaintiffs' exhibits--the seventy-three late-disclosed
documents produced by plaintiffs and a further sixteen
documents produced by defendants in this action--on ground
that their use violates the applicable discovery rules.
See Defs.' Mem. Plaintiffs filed their
opposition on January 21, 2014. See Pls.'
Opp'n. I heard oral argument on July 8, 2015,
see July 8, 2015 Min. Order, and the parties filed
supplemental briefs on July 27, 2015, See Defs.'
Suppl. Mem. in Further Supp. of the Mot. for Sanctions;
Pls.' Suppl. to July 8, 2015 Hearing [Dkt. #318]. I took
defendants' motion under advisement shortly thereafter.
disputes are, " for better or worse, the daily bread of.
. . district judges in the age of the disappearing
trial." Lee v. Max Int'l, LLC, 638 F.3d
1318, 1320 (10th Cir. 2011). As a result, district court
judges enjoy " wide discretion" in managing the
discovery process. Flynn v. Dick Corp., 481 F.3d
824, 834, 375 U.S.App.D.C. 328 (D.C. Cir. 2007). To that end,
the rules of civil procedure vest district judges with the
authority to define the parameters and " the sequence of
discovery." Crawford-El v. Britton, 523 U.S.
574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998);
see Edmond v. United States Postal Serv. Gen.
Counsel, 949 F.2d 415, 425, 292 U.S.App.D.C. 240 (D.C.
Cir. 1991) (" As a general matter, discovery under the
Federal Rules of Civil Procedure should be freely permitted
.... At the same time, a district court has broad discretion
in structuring discovery." (internal citations
omitted)). This includes the latitude to set deadlines,
resolve disputes and, when necessary, to sanction any party
that runs afoul of its obligations. See
Nat'l Hockey League v. Metro. Hockey Club, Inc.,
427 U.S. 639, 642-43, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)
(per curiam); Bonds v. District of Columbia, 93 F.3d
801, 808, 320 U.S.App.D.C. 138 (D.C. Cir. 1996) (" Under
Rule 37, the district court has broad discretion to impose
sanctions for discovery violations." ); Bristol
Petrol. Corp. v. Harris, 901 F.2d 165, 167, 284
U.S.App.D.C. 59 (D.C. Cir. 1990) (" [S]anctions have
been entrusted to the district courts to enable district
judges to discharge efficiently their front-line
responsibility for operating the judicial system." ).
Discovery having proceeded in less than perfect harmony, this
Court is now in the unenviable position of having to
determine the appropriateness of civil sanctions to address
the discovery abuses presently at issue. Regrettably, I find
that because plaintiffs violated their discovery obligations
under the Federal Rules, document preclusion is
necessary to remediate the considerable prejudice to
defendants and to deter future misconduct in this litigation.
Plaintiffs' Duty to Disclose Publicly Available
threshold issue is whether plaintiffs were required to
produce the documents at issue. They most assuredly were. The
Federal Rules obligate adversaries to timely provide copies
of " all documents, electronically stored information,
and tangible things that the disclosing party has in its
possession, custody, or control and may use to support its
claims or defenses." See Fed.R.Civ.P.
26(a)(1)(A)(ii). Because litigants are entitled to "
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense," Fed.R.Civ.P.
26(b), parties may request production of any discoverable
material within " the responding party's possession,
custody, or control," Fed.R.Civ.P. 34(a)(1).
the broad language of the Federal Rules, plaintiffs contend
that they were not obligated to produce the disputed material
because it was publicly available. Specifically, they argue
that " the material disclosed [in their productions]
was" not discoverable because it " came from the
public domain and was equally accessible to Defendants."
Pls.' Opp'n at 24. Under their logic, "
[b]ecause Defendants could have pursued [the at-issue]
documents from these same third-party sources, Plaintiffs
were not obligated to disclose such material in response to
Rule 34 document requests." Pls.' Opp'n at 25.
Federal Rules do not shield publicly available documents from
discovery merely because of their accessibility. A limitation
of this nature would lead to patently absurd consequences.
Indeed, it would require litigants
to scour the public domain for nuggets of information that
their adversaries could potentially use against them--a task
that is as Herculean as it is nonsensical. Litigation is not,
nor has it ever been, an elaborate parlor game of "
blind man's buff." See United States v.
Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2
L.Ed.2d 1077 (1958). To the contrary, the federal discovery
rules are designed to make litigation a " fair contest
with the basic issues and facts disclosed to the fullest
practicable extent." Id. A system that would
require litigants to divine from an ever-increasing universe
of public data what their opponents might use to
support their claims is hardly " fair" and it is
certainly not just. It would, to put it mildly, do a grave
disservice to our adversarial system.
in other circuits, bearing these principles in mind, have
compelled parties to produce relevant, publicly available
material that they intend to use to bolster their claims or
defenses. The Fifth Circuit recently stated that " even
if a document is publicly available or in the opposing
party's possession, a party must still disclose it under
Rule 26(a)(1)(A) to provide notice of evidence central to its
claims or defenses." Martino v. Kiewit N.M.
Corp., 600 Fed. App'x 908, 911 (5th Cir. 2015);
see, e.g., Phillips v. Hanover Ins. Co.,
14cv871R, 2015 WL 1781873, at *2 n.1 (W.D. Okla., Apr. 20,
2015) (" Courts consistently hold that parties have an
obligation to produce even publicly available
information." ); Morgan v. Safeway Inc.,
11cv1667(WMN), 2010 WL 2135601, at * 2 (D. Md. June 11, 2012)
(" [E]ven publically available information might
properly be the subject of a valid request for production of
documents." ); Ochoa v. Empresas ICA, S.A.B. de
C.V., 11cv23898, 2010 WL 3260324, at *5 (S.D. Fla. Aug.
8, 2012) (" Whether the documents are available to
Plaintiffs through due diligence does not control whether [a
litigant] should be compelled to produce them."
). This approach is eminently sensible.
It is, not surprisingly, the approach I take here.
Accordingly, plaintiffs were obligated to produce any and all
material in their possession, custody, or control--regardless
of whether it was publicly available--that they deemed
relevant to their case.