                            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

                                             3
           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.




                                                 5
       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



                                                   6
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)

                                                   7
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).
                                                 8
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.




                                                  9
                        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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