UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ESTATE OF ESTHER KLIEMAN, et al.,
Plaintiffs,
v. Civil No. 04-1173 (PLF/JMF)
THE PALESTINIAN AUTHORITY, et al.,
Defendants.
MEMORANDUM ORDER
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
1
In their motion for sanctions, plaintiffs refer collectively to “defendants” in their motion, when
in fact the production at issue was made solely by the PA.
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, [#195-2] at 16.
including any personnel file, that relate or
refer to” Hussam, Tamer Rimawi, Hadib,
and Hashash.
3/31/09 [Previous deadline for close of fact Scheduling Order [#91] at 1.
discovery.]
9/30/09 [Previous deadline for close of fact Minute Order dated 6/12/09.
discovery.]
2
Citations to events listed in the timeline are provided in the chart and therefore will not be
given again in the text of the opinion.
2
3/25/10 [Previous deadline for close of fact Order [#99] at 1.
discovery.]
9/30/10 [Previous deadline for close of fact Minute Order dated 3/15/10.
discovery.]
2/4/11 Plaintiffs sought issuance of a Hague Plaintiffs’ Motion for Issuance of
Convention Letter of Request seeking Letters of Request [#120].
documents relating to Zafer Rimawi.
3/16/11 Court denies [#120] without prejudice. Memorandum Order [#125].
3/31/11 [Previous deadline for close of fact Minute Order dated 9/20/10.
discovery.]
10/1//11 [Previous deadline for close of fact Memorandum Opinion [#124] at
discovery.] 12.
12/5/11 Court grants Plaintiffs’ Unopposed Motion Minute Order dated 12/5/11.
to Extend the Deadline for the Completion of
Fact Discovery [#133] to 3/31/12.
12/13/11 Plaintiffs sought “[a] printout or screenshot [#202-1] at 13-14.
of any official PA and/or PLO official
website which references or at any time has
ever referenced” Zafer Rimawi.
12/31/11 [Previous deadline for close of fact Minute Order dated 9/30/11.
discovery.]
1/17/12 PA and PO filed objections to 12/13/11 [#202-1] at 14.
requests.
2/29/12 Plaintiffs sought documents reflecting [#202-2] at 11-12.
payments by defendants to Zafer Rimawi and
William Khatib, as well as any written
requests by Rimawi and Khatib for payments
from defendants.
3/7/12 Plaintiffs sought issuance of a Hague Plaintiffs’ Motion for Issuance of
Convention Letter of Request seeking a Letter of Request [#147].
deposition of Zafer Rimawi.
3/31/12 [Previous deadline for close of fact Minute Order dated 12/5/11.
discovery.]
4/2/12 PA and PO filed objections to 2/29/12 [#202-2] at 11-12.
requests.
6/6/12 Court grants plaintiffs’ motion for a Letter of Memorandum Opinion [#173] at
Request to take the deposition of Zafer 3-4; Order [#174] at 1.
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.
10/12/12 With respect to Zafer Rimawi and William [#195-3] at 7-8.
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
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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).”
11/15/12 PA and PO filed objections to 10/12/12 Consolidated Memorandum of
request 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 Plaintiffs’ Opposition with Points
Rimawi, Ahmed Hadib, Hussam Halabi, and and Authorities to Defendants’
Annan Salim Hashash, plaintiffs sought all Motion for a Protective Order and
hard copies and digital/electronic files from Motion for Sanctions [#194-1] at
the PA’s Preventive Security Services 1.
(“PPS”) and the PA’s General Intelligence
Service (“GIS”).
11/27/12 Plaintiffs noticed a Rule 30(b)(6) deposition [#195-6] at 8.
to the PA regarding the GIS documents
sought on 11/16/12.
12/7/12 PA produced documents, including [#202] at 8.
personnel records relating to Zafer Rimawi,
to plaintiffs.
12/21/12 Plaintiffs move to extend deadline for Plaintiffs’ Motion to Extend the
completion of fact discovery. Deadline for the Completion of
Pending Fact Discovery Matters
[#186].
12/31/12 [Previous deadline for close of fact Memorandum Opinion [#173] at
discovery.] 3-4; Order [#174] at 1.
1/30/13 PA again produced responsive GIS [#202] at 8-9.
documents regarding Zafer Rimawi to
plaintiffs.
2/11/13 Court grants plaintiffs’ motion to extend Memorandum Order [#190] at 8.
deadline for completion of fact discovery to
4/15/13.
3/5/13 Deposition of Zafer Rimawi. [#202] at 9.
4/15/13 Deadline for close of fact discovery. [#190] at 8.
4
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 n.3. Learning of that production, plaintiffs in this case made their
November 16, 2012 discovery demand, described in the above chart.
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On December 7, 2012 and January 30, 2013, the PA, without waiving any objections to
earlier discovery demands, nevertheless produced documents from the PA’s General Personnel
Council (“GPC”) that responded to the November 16, 2012 discovery demand. Both productions
were made prior to Zafer Rimawi’s March 5, 2013 deposition. However, as noted above,
plaintiffs claim that the defendants hid and then belatedly produced the documents.
As to plaintiffs’ claim that defendants hid the documents, the only pertinent provision of
the Federal Rules of Civil Procedure is Rule 26(g). Under that rule, when an attorney signs a
disclosure, he is certifying, to the best of his “knowledge, information, and belief” that the
disclosure is “complete and correct at the time it [was] made.” Fed. R. Civ. P. 26(g). To prevail
under this rule and secure sanctions, plaintiffs would have to establish 1) that there was an earlier
disclosure to them of documents that were responsive to a certain request; 2) that defendants and
their counsel purposefully made a disclosure that was knowingly incorrect or incomplete; and 3)
that after the deposition in the case before Judge Leon, defendants and their counsel, caught in a
lie regarding their earlier production, finally made the disclosure that they knew should have
been made earlier.
Plaintiffs, however, do not invoke that rule nor do they establish that a disclosure made to
them was not complete and correct. They do not point, for example, to a disclosure made before
November 16, 2012 that was neither complete nor correct, and they certainly do not contend that
the disclosures made on December 7, 2012 and January 30, 2013 were either incomplete or
incorrect. Rule 26(g) is therefore inapplicable.
As to plaintiffs’ claim that defendants belatedly produced the documents, the only source
of authority for the imposition of a sanction would be Rule 37(b) of the Federal Rules of Civil
Procedure, which permits the court where the action is pending to sanction a party for failing to
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obey a court order. Fed. R. Civ. P. 37(b). But, in this case, the Court never ordered defendants to
make the December 2012 and January 2013 productions. Rather, while preserving their
objections to certain discovery, defendants voluntarily produced documents. While proving once
again that no good deed ever goes unpunished, defendants’ doing so cannot possibly be deemed
sanctionable under Rule 37.
Finally, while I appreciate that plaintiffs used the term “belated” to mean that defendants
and their counsel knew of the existence of the disclosed documents much earlier and only
produced them when the deposition in the Shatsky case disclosed their existence, there is not a
shred of evidence supporting that accusation.
II. Reimbursement of the Expenses Incurred by the PA in Seeking a Protective Order
Rule 37 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
If the motion [for a protective order] is granted . . . the court must,
after giving an opportunity to be heard, require the party . . . whose
conduct necessitated the motion, the party or attorney advising that
conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees. But the court
must not order this payment if: (i) the movant filed the motion
before attempting in good faith to obtain the disclosure or
discovery without court action; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5).
Plaintiffs argue that, as the parties opposing the PA’s motion for a protective order, they
should not be required to pay the PA’s reasonable expenses in filing the motion for two reasons.
First, plaintiffs claim that the PA did not act in good faith because it initially indicated that it
would be amendable to a 30(b)(6) deposition regarding the newly produced documents and then
later changed its position. Plaintiffs’ Response to this Court’s Show Cause Order [#201] at 6.
Second, plaintiffs claim that they were substantially justified in noticing the second 30(b)(6)
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deposition because 1) plaintiffs did not believe that this Court’s requirement that they seek leave
of the Court before taking any additional depositions applied to the newly produced discovery;
and 2) plaintiffs believed, in good faith, that because the PA initially agreed to produce a
30(b)(6) deponent to testify as to the newly produced documents, that there was no discovery
dispute to bring before the Court. Id. at 6-9.
The Court is not persuaded by plaintiffs’ arguments. The issue is whether plaintiffs
should be sanctioned for necessitating the PA’s filing of a motion for a protective order in light
of 1) this Court’s previous order denying plaintiffs’ motion to compel additional 30(b)(6)
depositions, 3 and 2) the fact that the deadline for the completion of fact discovery had already
been extended multiple times. That the PA initially agreed to a 30(b)(6) deposition and then
changed its position has no bearing on whether plaintiffs were substantially justified in opposing
the motion for a protective order. As I specifically stated in my June 6, 2012 Memorandum
Opinion, plaintiffs had an obligation to seek leave of the Court prior to noticing any additional
30(b)(6) depositions. [#173] at 12. Thus, plaintiffs’ argument that they didn’t think it necessary
to seek leave of the Court because the deposition topics had not previously been explored ignores
my previous holding that they had to seek my permission before taking a second 30(b)(6)
deposition of the defendants.
To put it simply, there were two stop signs in this case: 1) the order that permitted
certain depositions but set a deadline for discovery, which meant that there could be no further
discovery unless permitted by the Court; and 2) the unequivocal command of Federal Rule of
Civil Procedure 30(a)(2)(A)(ii), applied in my June 6, 2012 Memorandum Opinion, that leave of
3
See Estate of Esther Klieman v. Palestinian Auth., No. 04-CIV-1173, 2012 WL 2048253, at *6
(D.D.C. June 6, 2012); Fed. R. Civ. P. 30(a)(2)(A)(ii).
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court is required to take a second deposition of the same deponent. Plaintiffs drove through both
of them.
Indeed, as counsel in this case are well aware, the Court stood ready to resolve any
discovery controversy brought to its attention. A phone call with counsel would have permitted
the Court to either suggest a way to resolve their controversy or permit the Court to rule on it, if
it could not otherwise be resolved. That plaintiffs’ counsel never made that call before getting
on a plane to take a deposition in Jerusalem is mystifying. The Court would have expected him
to do that if the deposition was on K Street. Plaintiffs’ precipitous action thus forced the
defendants to seek a protective order, and I cannot find that plaintiffs’ opposition to defendants’
motions was substantially justified. Therefore, in accordance with Rule 37(a)(5), I order
plaintiffs to pay the costs, including attorney’s fees, that defendants incurred in making their
motion for a protective order.
It is therefore, hereby,
ORDERED that Plaintiffs’ Motion for Sanctions [#195] is DENIED insofar as it was
premised upon the PA’s allegedly hiding and then belatedly producing certain documents. It is
further, hereby,
ORDERED that the Order to Show Cause is discharged. Finally, it is, hereby,
ORDERED that defendants file a petition seeking attorney’s fees, in accordance with
this Memorandum Order, by September 18, 2013. Plaintiffs may file any opposition thereto by
September 25, 2013, and defendants may file a reply thereto by October 2, 2013.
SO ORDERED.
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Digitally signed by John M. Facciola
DN: c=US, st=DC, l=Washington,
email=john_m._facciola@dcd.uscourts.gov,
o=United States District Court for the
District of Columbia, cn=John M. Facciola
___________________________________ -04'00'
Date: 2013.09.05 15:03:55
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
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