Gilmore v. Palestinian Interim Self-Government Authority

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REUVEN GILMORE, et al.,

Plaintiffs,

Civil Action No. 1-853 {GK)

v.

PALESTINIAN INTERIM SELF-

GOVERNMENT AUTHORITY, et al.,

Defendants.

MEMORANDUM OPINION

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 3 0,

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, 2 001. 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

1

Due to the transliteration of these individuals' names from

English to Arabic, the names are also sometimes written as

Mustafa "Maslamani," Mahmoud "Damra" and "Muhannad Abu Halaweh."

Abu Halawa is also known by the name "Muhannad Sa' eed Munib

Deireia."

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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 "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

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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.

Dis t . Ct . I 4 8 2 u. s . 52 2 ( 19 8 7) . 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

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PA. II 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 0

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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 documents[.]" Nov. 27 Am. Order at 2 (citing

Societe Nationale, 482 U.S. at 544).

The Court also explained that the basis for its assessment

of relevancy and admissibility was set forth in its Memorandum

Order denying the original Motion to Compel, and that "[t] here

was virtually no other information or argument in Defendants' ex

parte Memorandum referring to [such issues] other than what the

Court described." Id. at 3.

Thereafter, on December 23, 2013, Plaintiffs filed the

instant Renewed Motion for Production of PA GIS Documents and

Related Relief ("Renewed Motion) [Dkt. No. 352] . 2 On January 6,

2

Plaintiffs made only the most perfunctory attempt to satisfy

the requirements of Local Rule 7(m) by emailing opposing counsel

on· a Sunday and, prior to receiving any response, filing this

Motion the following morning. Such efforts clearly do not

satisfy Rule 7 (m) Is requirement that "counsel shall discuss the

anticipated motion with opposing counsel, either in person or by

telephone" and make a "good faith effort" to determine whether

there is any opposition to the relief sought. L. R. 7 (m)

(emphasis added). Nevertheless, because it is clear Defendants

would have opposed the Motion, and because Plaintiffs raise

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2014, Defendants filed their Opposition [Dkt. No. 356] On

January 16, 2014, Plaintiffs filed their Reply. [Dkt . No. 3 57] . 3

II. DISCUSSION

Plaintiffs advance four arguments in support of their

Renewed Motion.

First, they claim that they are entitled to de novo review

of the Court's admissibility and relevancy determinations

because they were not afforded an opportunity to address these

issues in the original Motion to Compel. Second, they argue, on

the merits, that the Court erred in concluding the GIS documents

are not relevant or admissible. Third, they assert that the

Court clearly erred in extending comity considerations to the

Palestinian Authority. Fourth, they contend that the Court's

weighing of the Societe Nationale factors merit reconsideration

in light of a subsequent development in a case currently pending

in the Southern District of New York, Sokolow v. Palestinian

important arguments regarding due process, the Court shall

address Plaintiffs' Motion on its merits.

3

In the meantime, o"n October 2, 2013, Plaintiffs filed their

Opposition to Defendants' Motion for Summary Judgment [Dkt. No.

336-1]. On October 25, 2013, Defendants filed their Reply to

Plaintiffs' Opposition to Defendants' Motion for Summary

Judgment [Dkt. No. 341]. That Motion is now fully briefed and

pending before the Court.

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Liberation Org., No. 04 Civ. 397 (GBD) (RLE) (S.D.N.Y Nov. 4,

2013) . The Court addresses these arguments in turn.

A. Standard of Review

1. Plaintiffs Are Not Entitled to De Novo Review

Plaintiffs contend that they are entitled to de novo review

of the Court's conclusions regarding relevancy and admissibility

because they were not given an opportunity to brief these issues

in connection with their Motion to Compel. Pls.' Mot. at 3 n.2.

This is inaccurate.

As previously explained in the Court's Amended Order

denying Plaintiffs' Motion to Unseal, the Court considered the

relevancy and admissibility of the GIS documents solely in the

context of assessing their importance to the case under the

Societe Nationale framework. Further, Plaintiffs were on notice

that the Court would consider these issues in deciding the

Motion to Compel. As discussed below, Defendants' Opposition

brief, which was not filed ex parte, and to which Plaintiffs

filed a Reply, contested the relevancy and admissibility of the

GIS documents twice.

First, in discussing the qualified law enforcement

privilege, Defendants' Opposition brief observed that:

[I]nformation contained in [GIS] files often is

collected from sources outside the PA that are of

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varying degrees of reliability, and the information

may or may not be true and may or may not be based on

first-hand knowledge. The raw intelligence

information in these files, of dubious reliability,

thus has little probative value to Plaintiffs' case.

On balance, these factors weigh in favor of non-

disclosure because of the detrimental effect

disclosure would have on GIS' work and the marginal

value of the GIS files to this case.

Defs.' Opp'n to Mot. to Compel at 8-9 (quotation marks omitted)

(emphasis added) .

Second, in discussing the Societe Nationale factors,

Defendants' Opposition brief again emphasized that, "[a] s would

be evident from an in camera review, the GIS files are of

marginal significance to the litigation [because] [w] i th

fact discovery closed, Plaintiffs still lack admissible evidence

as to their theory [that Abu Halawa shot Gilmore] The GIS

files do not change that equation." Id. at 9-10.

Despite the fact that Defendants clearly presented these

arguments in their Opposition brief, Plaintiffs elected not to

respond to them. Because Plaintiffs have already had one

opportunity to address the relevancy, admissibility, and

importance of the documents, their attempt to now reargue these

points must be considered under the narrow standard of review

applicable to a motion for reconsideration.

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2. Standard Governing Motion for Reconsideration

"[W]here litigants have once battled for the court's

decision, they should neither be required, nor without good

reason permitted, to battle for it again." Negley v. F.B.I.,

825 F. Supp. 2d 58, 60 (D.D.C. 2011) (citation and quotation

marks omitted) . Although a court has the discretion to

reconsider an interlocutory order "as justice requires" at "any

time before the entry of a judgment adjudicating all the claims

and all the parties' rights and liabilities[,]" Fed. R. Civ. P.

54 (b) , the Supreme Court has cautioned that a court should be

"loathe to do so in the absence of extraordinary circumstances

such as where the initial decision was clearly erroneous and

would work a manifest injustice." Christianson v. Colt Indus.

Operating Corp., 486 u.s. 800, 817 (1988) (citation and

quotation marks omitted).

"In particular, a court should grant a motion for

reconsideration of an interlocutory order only when the movant

demonstrates (1) an intervening change in the lawi (2) the

discovery of new evidence not previously available i or (3) a

clear error of law in the first order." In re Guantanamo Bay

Detainee Litig., 706 F. Supp. 2d 120, 122-23 (D.D.C. 2010)

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(citation and quotation marks omitted) . A motion for

reconsideration is not an "opportunity to reargue facts and

theories upon which a court has already ruled," nor is it "a

vehicle for presenting theories or arguments that could have

been advanced earlier." S.E.C. v. Bilzerian, 729 F. Supp. 2d 9,

14 (D.D.C. 2010) (citations omitted).

B. The Motion Is Timely

Defendants first contend that Plaintiffs' Motion for

Reconsideration is untimely. Defs.' Opp'n at 5-6. While it is

true Plaintiffs waited more than six months after the Court

ruled on their Motion to Compel to file the instant Motion, _they

filed their Motion to Unseal on June 20, 2013, only two weeks

after the Court's ruling. In that Motion, Plaintiffs explained

that they sought to unseal Defendants' ex parte memorandum in

order to aid them in filing this Motion. See Pls. ' Mot. to

Unseal at 3 ("Plaintiffs bring this motion because they believe,

respectfully, that the Court's rulings denying their Motion to

Compel are erroneous, and they intend to move for

reconsideration and reversal of those rulings.") [Dkt. No. 319-

1] . Plaintiffs filed this Motion less than one month after the

Court resolved the Motion to Unseal. Consequently, the Motion

is timely.

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c. There Is No Basis to Reconsider the Court's Assessment

of the Importance of the GIS Documents

Plaintiffs argue that the GIS documents: (1) are "highly

relevant"; 4 (2) are admissible under various hearsay exceptions

or as a sanction for Defendants' late disclosure of the

documents; (3) are likely to lead to admissible evidence even if

they are not themselves admissible; and ( 4) are properly

considered by their expert regardless of admissibility. Pls.'

Mot. at 3-10.

Each and every one of these arguments could have been

advanced in Plaintiffs' Reply to Defendants' Opposition to their

Motion to Compel. Plaintiffs do not offer any justification for

failing to do so, nor do they point to any development in the

record warranting a reconsideration of these issues. 5

4

Plaintiffs contend the documents are relevant to: (1) whether

Abu Halawa was Gilmore's shooter; (2) whether he was "known to

be involved in numerous terrorist activities against Israeli

targets during the same period"; (3) whether the shooting was

within the scope of Abu Halawa' s employment with the PA and

whether the PA knew that Abu Halawa was involved in terrorist

activities; and (4) the PA's "policies of inciting and

encouraging terrorism" during the relevant time period. Pls.'

Mot. at 4-6.

5

Plaintiffs argue that their expert, Alon Eviatar, a former

intelligence officer with the Israel Defense Forces, is entitled

to consider the GIS documents in forming his opinions about the

case. Pls. Mot. at 8-9. Given that Plaintiffs have had since

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Plaintiffs also misconstrue the reasoning underlying the

Court's determination. The Court has never suggested the ·GIS

documents lack any relevance whatsoever, or would not, absent

the special considerations present here, be discoverable under

the Federal Rules of Civil Procedure. To the contrary, the

Court acknowledged in its June 6 Memorandum Order that the files

include information about the National Insurance Institute

attack. The Court concluded,· however, that the documents had no

great significance because they are both hearsay and duplicative

of materials already in Plaintiffs' possession. For these

reasons, the documents would not assist Plaintiffs in

establishing the factual centerpiece of their case, which is

their contention that Abu Halawa killed Gilmore within the scope

of his employment for the PA. Plaintiffs have not shown any

basis for the Court to reconsider this assessment.

September 19, 2012, at the latest, to obtain the opinion of an

expert, there does not appear to be any reason Plaintiffs could

not have made this argument in their Motion to Compel. Further,

Eviatar' s Declaration states that, even without the GIS

documents, he has formed the "conclusion with a high degree of

certainty," that Abu Halawa, a "known terrorist," murdered

Gilmore. Declaration of Alon Eviatar ~ 9 [Dkt. No. 352 -2] .

Consequently, even if the Court were to consider Eviatar's

Declaration, it does not establish that the GIS documents are of

any outstanding importance to Plaintiffs' case.

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D. The Court Did Not "Clearly Err" by Considering the

Palestinian Authority's Interests as a Foreign

Government

Next, Plaintiffs argue that the Court clearly erred in

concluding that comity considerations apply to the Palestinian

Authority because "the principle of comity only applies to

foreign states and the PA is not a foreign state." Pls.' Mem.

at 10. Plaintiffs quote a sentence from Societe Nationale in

which the Supreme Court observed that "[w]e have long recognized

the demand of comity in suits involving foreign states, either

as parties or as sovereigns with a coordinate interest in the

litigation." Societe Nationale Industrielle Aeropastiale, 482

U.S. 522 at 546. Plaintiffs highlight the Supreme Court's use

of the word "state" to argue that the Palestinian Authority is

not entitled to comity considerations because the United States

does not recognize it as a "state."

The quoted portion from Societe Nationale emphasizes the

importance of protecting foreign litigants from unduly

burdensome discovery. The Court made it very clear that its use

of the word "state" in the quoted sentence did not delimit or

define precisely which foreign litigants qualify for such

protection. To the contrary, in the very next sentence, the

Supreme Court stated:

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American courts should therefore take care to

demonstrate due respect for any special problem

confronted by the foreign litigant on account of its

nationality or the location of its operations, and for

any sovereign interest· expressed by a foreign state.

We do not articulate specific rules to guide this

delicate task of adjudication.

Id. (emphases added). Consequently, Societe Nationale provides

no support for Plaintiffs' contention that it was error to

consider the Palestinian Authority's special interests as a

foreign government.

Plaintiffs also cite two district court cases for the

proposition that the principle of deference to foreign law does

not apply to local, rather than national, laws. See Pl s. ' Mot.

at 10-11 (citing Young Women's Christian Ass'n of Nat. Capital

Area, Inc. v. Allstate Ins. Co. of Canada, 94 Civ. 741 JHG PJA,

1994 WL 661523 (D.D.C. Nov. 22, 1994) and Lyons v. Bell Asbestos

Mines, Ltd., 119 F.R.D. 384, 389 (D.S.C. 1988)). These cases

are inapposite because the Palestinian Authority is not a

"local". government of the type at issue in the cited cases. 6 In

6

In Young Women's Christian Association, a Magistrate Judge in

this Court issued a Report & Recommendation concluding that the

blocking statutes of Quebec and Ontario were "not entitled to

any deferential consideration under the comity principles of

international law, " because, inter alia, they were "local laws

and not national laws." Young Women's Christian Ass' n of Nat.

Capital Area, 1994 WL 661523, at *2. Lyons does not involve, as

this case does, a consideration of permissive deference, but

rather considered whether a district court was required to abide

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addition, these cases merely concluded that foreign local laws

were not entitled to deference; they did not hold that a court

is not permitted to consider such laws in resolving a discovery

dispute. Cf. Fed. R. Civ. P. 26(b)(2)(C). Further, neither

case is binding on this Court, and neither demonstrates an

intervening change in the law.

In sum, Plaintiffs have not established any grounds for

reconsidering the Court's assessment that the PA's interests as

a foreign government warrant deference.

E. Developments in the Sokolow Case Do Not Warrant

Reconsideration

Finally, Plaintiffs argue that even if the Court properly

applied the Societe Nationale factors to the PA, those factors

should be reconsidered in light of the fact that Defendants were

recently ordered to produce GIS documents in Sokolow.

Plaintiffs argue that, as a result, Defendants can no longer

"reasonably claim that their proprietary investigative

techniques will be revealed by production of GIS documents in

this case." Pls.' Mot. at 12.

by a foreign law restricting discovery. Lyons, 119 F. R. D. at

389. A determination that a district court is not required to

defer to a foreign law is a far cry from holding that it may not

consider such law in exercising its broad powers to supervise

discovery pursuant to Fed. R. Civ. P. 26(b) and (c).

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As Defendants point out, although Magistrate Judge Ellis'

Order in Sokolow post-dates this Court's June 6 Memorandum Order

denying Plaintiffs' Motion to Compel, the fact that Defendants

have produced GIS documents in other cases is not a new

development. De f s . ' Opp' n at 6. In their original Motion to

Compel ·in this case, Plaintiffs argued that "in other cases in

the U.S. and in Israel, the Defendants have provided GIS files

notwithstanding any claim of state secrets or other privileges."

Pls.' Mot to Compel at 13; see also Reply in Support of Mot. to

Compel ·at 10 ("If GIS documents were really secret, defendants

would not have produced hundreds of them, without any

compulsion, in prior cases.") . The Court addressed this topic

at a hearing on Plaintiffs' Motion to Compel, and defense

counsel explained that the decision whether to produce

intelligence files are made by the PA on a case-by-case basis

based on their content. Tr. 5/20/13 at 17:21-18:17.

Plaintiffs now argue that the scope of the Sokolow

production (approximately 330 pages) renders it "an extremely

new development" because defendants only made "small productions

of GIS documents in other cases." Pls.' Reply at 7. This

assertion is directly contradicted by Plaintiffs' Reply brief in

support of their Motion to Compel, in which they argued that

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Defendants had already "produced hundreds of [GIS documents]" in

prior cases. Reply in Support of Mot. to Compel at 10 (emphasis

added).

The GIS documents disclosed in the Sokolow case relate to

different individuals and different subject matter than the

documents at issue in this case. Consequently, there is no

basis to conclude that their disclosure moots the Court's

concerns regarding exposing specific individuals to threats and

increasing the risk of disrupting diplomatic relations with

foreign governments. See Nov. 27, 2013 Mem. Order at 2 [Dkt.

No. 350] . Therefore, the Sokolow decision does not justify

reconsideration of the Court's determination that disclosure of

the GIS documents will undermine important interests of the PA.

III. CONCLUSION

For the foregoing reasons, Plaintiffs' Renewed Motion for

Production of PA GIS Documents will be denied.

March 24, 2014 Glgy~r~

United States District Judge

Copies to: attorneys on record via ECF

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