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Shatsky v. Syrian Arab Republic

United States District Court, D. Columbia

November 20, 2015

SHABTAI SCOTT SHATSKY, et al., Plaintiffs,
THE SYRIAN ARAB REPUBLIC, et al., Defendants

          For 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.

         For 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.

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         MEMORANDUM OPINION (November 20, 2015) [#270]

         RICHARD J. LEON, United States District Judge.

         In the 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 Organization

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(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 this litigation.

         In the 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.


         This 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.[1] 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.[2] 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. Order.

         On August 3, 2012, defendants, in the midst of their own document production, propounded

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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.[3] Defs.' Mem. at 20.

         Meanwhile, 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.[4] 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!" ).

         Thereafter, 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.[5] 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.[6] See id. Twenty-five exhibits consist of documents appended to plaintiffs' stricken Rule 26(a)(2) expert reports.[7] Id. Three exhibits consist of documents that were withdrawn by plaintiffs pursuant to the parties' April 16, 2013 agreement.[8] A further twenty-five exhibits contain documents that plaintiffs produced after defendants filed their Motion for Summary Judgment in August 2013.[9] See id.

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          On 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.


         Discovery 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.

         I. Plaintiffs' Duty to Disclose Publicly Available Documents

         The 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).

         Notwithstanding 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. How absurd!

         The 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

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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.

         Courts 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." ).[10] 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.[11]

         II. ...

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