Shatsky v. Syrian Arab Republic ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHABTAI SCOTT SHATSKY, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 02—02280 (RJL)
)
THE SYRIAN ARAB REPUBLIC, )
et al., )
) F I L E D
Defendants. ) NOV 2 0 2015
MEMS :BANDfi—VQEINIOE Clerk, U.S District 8. Bankruptcy
(November 2 2015) [#270] Courts It“ the District of Columbia
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 (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.
BACKGROUND
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 1] 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
2
it ever been, carte blanche to ignore Court-imposed deadlines.
Plaintiffs’ apparent interpretation of Rule 26(e) is anathema to the fair and orderly
progress of discovery. As an initial matter, it is not “supplementation” to, as plaintiffs
did here, produce the bulk of their discovery after the deadline has lapsed.12 Plaintiffs’
argument that their disclosures were calculated to comply with the Federal Rules rings
especially hollow given that many of the disputed documents were available well before
the September 2012 discovery deadline13 and were produced in related actions as early
as 2009.14 See generally Defs.’ Mot. Ex. 4. For that reason, I find that plaintiffs’
productions violated this Court’s scheduling order and turn now to fashioning an
appropriate sanction.
Rule 16(f)(1)(C) allows courts to remedy violations of court orders through the
issuance of any sanction authorized by Rule 37(b)(2)(A)(ii)-(vii). Rule 37(b)(2)(A)(ii)
in turn permits courts to preclude the “disobedient party from supporting or opposing
—=—=.;.
‘2 As previously stated, plaintiffs produced an astonishing sixty-nine percent of their overall discovery
after September 19, 2012. The dictionary definition of “supplement” makes clear that the word connotes
a far smaller production of documents than the sixty-nine percent of their overall production that they
belatedly infused into the record. Black’s Law Dictionary, for example, defines a “supplemental
disclosure” as the “disclosure of additional facts and information,” usually “because of previous
unavailability.” Supplemental Disclosure, Black’s Law Dictionary (10th ed. 2014). The Oxford English
Dictionary likewise defines “supplement” as “[a] thing . . . added to make good a deficiency or as an
enhancement; an addition or continuation to remedy or compensate for inadequacies.” Supplement,
Oxford English Dictionary (3d ed. 2012).
'3 Indeed, over half of the disputed exhibits were created before September 19, 2012. See generally
Defs.’ Mot. Ex. 4. Forexample, plaintiffs’ Exhibit 116, the May 5, 2002 Statement of Lafi Nasura to
Israeli Police, was in plaintiffs’ position as early as December 2012. See Defs.’ Mot. Ex. 4. However,
plaintiffs waited to produce this document until October 2013, after defendants filed their motion for
summary judgment. See Defs.’ Suppl. Mem. at 9.
‘4 Exhibit 31 to plaintiffs’ summary judgment opposition illustrates this point. Exhibit 31 is a May 20,
2004 verdict against Marwan Barghouti in State of Israel v. Marwan Bin Khatib Barghouti. [Dkt. #267—
2]. Although plaintiffs’ counsel does not recall the date on which they received this document, they have
at least been aware of its existence since 2009, when it was produced in a similar action. See Hr’g Tr.
1527-23, July 8, 2015 [Dkt. #319]. For reasons that are not clear to this Court, however, plaintiffs delayed
producing it in this case until November 6, 2013. See Defs.’ Suppl. Mem. at 8.
l 1
designated claims or defenses, or from introducing designated matters in evidence.”
Fed. R. Civ. P. 37(b)(2)(A)(ii).15 The Court is mindful of the role equity plays in this
analysis and takes seriously its obligation to ensure that its actions are both “just” and
“proportional” to the discovery infraction. See Ins. Corp. of Ireland Ltd. v. Compagnie
des Bauxites de Guinee, 456 US. 694, 707 (1982) (“First, any sanction must be ‘just’;
second, the sanction must be specifically related to the particular ‘claim’ which was at
issue in the order to provide discovery”); Bonds, 93 F.3d at 808 (“The choice of
sanction should be guided by the concept of proportionality between offense and
sanction.” (internal quotation marks omitted)). Where, as here, the Court is
contemplating the exclusion of evidence critical to plaintiffs’ case, it must determine
whether a sanction of this severity is warranted by the record. See Bonds, 93 F.3d at 808
(“[I]n cases involving severe sanctions . . . the district court [should] consider whether
lesser sanctions would be more appropriate for the particular violation.”).16 Specifically,
this Court must decide whether the sanction is “necessary to avoid prejudice” to the
aggrieved party and, to the extent the sanction is designed to deter future abuses,
whether it is “supported by a finding of flagrant or egregious misconduct.” See id. at
‘5 I pause briefly to note that the sanctions enumerated under Rule 37(b)(2)(A) are neither exhaustive nor
mutually exclusive, and that the Court may impose any number or type of sanctions it deems necessary.
See, e.g., DL v. District of Columbia, 274 F.R.D. 320, 324-25 (D.D.C. 2011) (“Rule 37 provides district
courts broad discretion to sanction a party that fails to obey an order to provide or permit discovery.”
(citing cases)); United States v. Proceeds of Drug T raflicking Transferred to Certain Foreign Bank
Accounts, 252 F.R.D. 60, 62-63 (D.D.C. 2008) (“Sanctions are integral to the operation of the judicial
system” and Rule 37 “allows the court to apply a variety of sanctions to any party in a case.” (emphasis in
original) (citing cases)); Mojarad v. Aguirre, No. Civ. A. 05-0038, 2006 WL 785415, at *10 (D.D.C. Mar.
27, 2006) (“The possible sanctions set out in Rule 36(b)(2) are not mutually exclusive; the court may
impose several of the specified sanctions at the same time”).
16 Our Circuit has indicated that preclusion might be tantamount to the more “severe” sanction of
dismissal when it results in a “one-sided” briefing of the issues that leaves plaintiff with “little ability to
contest the [defendant’s] claims.” See Bonds, 93 F.3d at 808—09.
12
809. In exercising its discretion, the Court may consider the nature of the resulting
prejudice, “whether deterrence is necessary to protect the integrity of the judicial
system,” and what effect, if any, plaintiffs’ “dilatory or contumacious conduct [has had]
on the court’s docket.” Id. at 808; see Bristol Petrol. Corp., 901 F.2d at 167 (same).
Unfortunately for plaintiffs, each of these factors weighs in favor of precluding from the
record the documents they untimely produced.
A. Prejudice t0 Defendants
I begin by analyzing the prejudicial effect of plaintiffs’ conduct. A litigant’s
failure to abide by discovery deadlines is prejudicial when it prevents the opposing party
from timely reviewing relevant evidence. See Moore v. Napolitano, 723 F. Supp. 2d 167,
181-82 (D.D.C. 2010) (finding prejudice where the opposing party failed to timely
produce relevant documents); Klaymari v. Judicial Watch, Inc, 256 F.R.D. 258, 262
(D.D.C. 2009) (“Plaintiff’ s conduct has severely prejudiced Defendants by preventing
them from reviewing any documentary evidence relating to Plaintiff’s damages or alleged
defenses to counterclaims.”). This principle applies with special force where, as here, a
party’s late disclosures alters its adversary’s well-settled theory of the case. See DCFS
USA, LLC v. District ofColumbia, 803 F. Supp. 2d 29, 37 (D.D.C. 2011) (finding
sanctions appropriate because “discovery has long since been closed, [and the aggrieved
party] has justifiably relied on a theory of the case now altered” by opposing counsel’s
late disclosures). Unfortunately for plaintiffs, I find that their failure to timely produce
responsive documents was categorically prejudicial.
Plaintiffs contend that “neither Mr. Tolchin’s Declaration nor any of Plaintiffs’
13
exhibits could have caused even the slightest hiccup in Defendants’ litigation strategy”
because “many of the documents Defendants now seek to strike” are publicly available
materials that “were in fact produced by Defendants in other cases or should have been
produced by Defendants in response to Plaintiffs’ discovery requests.” Pls.’ Opp’n at 32.
Plaintiffs’ position, however, is simply not supported by the law. First, the mere fact that
certain of these documents were produced by defendants in other cases does not
ameliorate the prejudice caused by plaintiffs’ untimely productions here. It is
preposterous to suggest that knowledge, however atmospheric, of certain documents
ensures a fair and equal discovery process for the party that is blindsided by their
eleventh hour production. .It surely does not. Existential awareness has never been, nor
will it ever be, a substitute for production. See T ransamerica Life Ins. Co. v. Lincoln
Nat’l Life Ins. Co., 255 F.R.D. 645, 652 (ND. Iowa 2009) (finding that defendant was
prejudiced by the “belated inclusion of information” because plaintiff’s untimely
disclosures offered “a different picture of the relevant issues”). Second, and as I
discussed at length, the public availability of certain documents does not render
plaintiffs’ failure to timely produce them harmless. It does nothing of the sort. See
Nightlight Sys, Inc. v. Nitelites Franchise Sys. Inc, 04cv2112 (CAP), 2007 WL 4563875,
at *7 (ND. Ga. May 11, 2007) (rejecting plaintiffs’ argument that defendants were not
harmed by the untimely disclosure of publicly available documents because “[w]hile
defendants may have access to the internet, the defendants are not obligated to scour the
internet to find web pages that the plaintiffs may rely on”). Third, plaintiffs’ failure to
timely provide relevant material hampered defendants’ ability to test these documents
14
through the discovery process. Indeed, by producing documents after the close of fact
discovery, plaintiffs effectively precluded defendants from taking any additional
depositions to further investigate the late-breaking disclosures. Fourth, and finally,
plaintiffs’ actions materially altered the evidentiary landscape after defendants filed for
summary judgment relief.
Exhibit 31 to plaintiffs’ summary judgment opposition—the 2004 verdict in the
case of State OfIsrdel v. Marwan Bin Khatib Barghouti—illustrates these points with
particular clarity. Plaintiffs use this public document, which contains a narrative of the
PLO’s alleged terrorist activities, to support their contention that defendants perpetrated
terrorist attacks in Israel. See Pls.’ Stmt. of Material Facts 74 [Dkt. #252-1]. From
plaintiffs’ perspective, it provides a link, however tenuous, between defendants and the
Karnei Shomron bombing at issue here. Nonetheless, and despite its apparent
significance to their case, plaintiffs failed to produce this document until November 2013,
well after defendants filed their motion for summary judgment. See Defs.’ Suppl. Mem.
at 8. Not only did this preclude defendants from deposing additional witnesses about its
significance, but the timing of the disclosure prevented defendants from addressing the
document in their opening brief. Conduct of this ilk is neither just nor fair, and it is
certainly a far cry from “civil.” The Court simply will not place its imprimatur on actions
that appear calculated not only to undermine defendants’ case, but also to perpetuate a
litigation already a decade in the making. For that reason, I find plaintiffs’ conduct
highly prejudicial.
15
B. Deterrence
Deterrence likewise favors a stringent remedy. It is well-settled that “[t]he district
court’s interest in deterrence is a legitimate one, not merely to penalize those whose
conduct may be deemed to warrant such a sanction, but to deter those who might be
tempted to such conduct in the absence of such a deterrent.” See Bonds, 93 F.3d at 808
(internal quotation marks omitted). Deterrence is an especially important consideration
where, as here, a party has exhibited “protracted recalcitrance” throughout the discovery
process. See Jankins v. TDC Mgmt. Corp. Inc., 21 F.3d 436, 445 (DC. Cir. 1994)
(finding that sanctions were appropriate “[g]iven the defendants’ willful misconduct” and
the need “to deter misconduct by others”); Moore, 723 F. Supp. 2d at 184 (finding that
severe sanctions were appropriate because lesser sanctions had not deterred the
defendant’s “history of protracted recalcitrance”).
This is not the first time the Court has reprimanded plaintiffs’ obduracy. Although
there are several examples of their misconduct, only a few will suffice to explain the
Court’s reasoning here. On September 12, 2012, defense counsel inadvertently produced
a privileged document. Decl. of John C. Eustice at 1111 12, 14 [Dkt. #170-4].= Defendants,
upon realizing their mistake, promptly sought its destruction. See Defs.’ Mem. at 11-12
& n.8. Their request, however, went unheeded, forcing defendants to seek judicial
intervention. See Mot. of Def. the Palestinian Authority for Return or Destruction of an
Inadvertently Produced Document [Dkt. #170]. On January 2, 2013, the Court ordered
plaintiffs to return the document. Jan. 2, 2013 Min. Order. Plaintiffs did not immediately
comply. See Pls.’ Mot. for a Stay [Dkt. #212]. Instead, it was only after this Court
16
scheduled a contempt hearing that plaintiffs finally destroyed the errant document. See
Defs.’ Report on Compliance Required of Pls. [Dkt. #224].
I Unfortunately, this was not an isolated transgression. On February 14, 2013, four
months after the October 2012 deadline, plaintiffs submitted their expert reports
notwithstanding this Court’s explicit warnings not to do so. Frustrated by their “repeated
and unsuccessful attempts to submit overdue liability experts,” I sanctioned plaintiffs by
precluding them “from introducing such experts’ testimony in evidence.” See Mem.
Order at 3 [Dkt. # 242]. Plaintiffs, apparently determined to have the last word, filed
several of the documents appended to the stricken reports as exhibits to their summary
judgment opposition. See Defs.’ Suppl. Mem. Ex. A. They see nothing wrong with their
actions. Instead, plaintiffs claim that the Court’s Order excluded only “expert testimony,”
and not the documents underpinning their expert reports. Pls.’ Opp’n at 29 (emphasis in
original). This interpretation is too clever by half and is, in all events, woefully
inaccurate. By recasting this Court’s discovery sanction as an invitation to late file non-
testimonial expert documents, plaintiffs flagrantly disregarded both the letter and the
spirit of this Court’s Order.
Similar antics surrounded plaintiffs’ pursuit of a subpoena on non-party Arab
Bank, PLC. In that instance, plaintiffs issued a subpoena ten months into the discovery
period and persisted, for several months after the close of discovery, to enforce their
subpoena. Mem. Order [Dkt. #266]. This Court, frustrated by plaintiffs’ “dilatory and‘
unforthcoming conduct” and their persistence of additional discovery despite the
17
“seeming acknowledgement that discovery was closed,” ordered plaintiffs to cease and
desist the subpoena process. Id. at 6.
Against this patchwork of discovery infractions, plaintiffs made nearly seventy
percent of their document production after the close of discovery and did so
notwithstanding this Court’s numerous warnings that the discovery deadline was an
immutable one. I am hard-press to view their conduct as anything other than shoddy
gamesmanship. Plaintiffs’ habit of creatively interpreting—and at times, altogether
ignoring—this Court’s admonishments simply cannot be tolerated. For that reason,
sanctions are necessary not only to remedy the prejudice to defendants but also to stop a
pattern of misconduct that has become all too rote.
C. Prejudice to the Judicial System
The final factor, prejudice to the judicial system, likewise weighs in favor of a
broad evidentiary preclusion. Parties cannot “pick and choose when to comply with a
court order depending on counsel's unilaterally determined excuses or justifications not to
comply with the order. The order is either obeyed or appealed.” Moore v. Chertofi', 255
F.R.D. 10, 34 (D.D.C. 2008), objections overruled sub nom. Moore v. Napolz'tarzo, 723 F.
Supp. 2d 167 (D.D.C. 2010) (internal quotation marks omitted). There is, moreover
“importance per se in not allowing a party to ignore orders” to ensure that the litigation
process does not “descend into chaos.” Id. (internal quotation marks omitted); see also
Perez v. Berhanu, 583 F. Supp. 2d 87, 91 (D.D.C. 2008) (imposing a sanction to remedy
counsel’s “disrespect” for the judicial system, which was demonstrated by their failure to,
among other things, respond to the opposing parties' discovery requests and to abide by
18
the discovery deadline). Where, as here, a party’s conduct has interfered with the Court’s
ability to preside over an orderly and efficient discovery process, the equities certainly
warrant sanctions.
III. Scope of the Sanction
Having concluded that Rule 37 document preclusion is warranted, what sanction is
proportional to the harm? It is incumbent, of course, on all federal district courts to
ensure that the chosen sanction is appropriately tailored to reflect both the harm at issue
and the interests at stake. Courts are therefore “obliged to consider whether the more
severe sanction [is] necessary to further interests other than deterrence, or if not, whether
a less severe sanction would have been more proportionate to the nature [of the party’s]
discovery violation and its effects on the litigation. ” Bonds, 93 F.3d at 809; Outley v.
City ofNew York, 837 F.2d 587, 591 (2d Cir. 1988) (“Before the extreme sanction of
preclusion may be used by the district court,.-a judge . . . must consider less drastic
responses”).
With these considerations in mind, I begin by considering the appropriateness of
defendants’ request for relief. Defendants ask thisI'Court to strike the Tolchin Declaration
and to preclude plaintiffs from relying on eighty-nine of the exhibits appended to their
summary judgment opposition, sixteen of which are documents produced by defendants
themselves. I agree, as an initial matter, that plaintiffs should be precluded from relying.__
on the Tolchin Declaration as well as on the documents that they untimely produced in
this litigation. But I see no reason to restrict my Order to plaintiffs’ seventy-three late-
produced exhibits. Rather, because prejudice will result from plaintiffs’ reliance on any
19
documents that were produced after the discovery deadline, this Court will preclude
plaintiffs from using any and all documents that were produced after September 19,
2012.17 Defendants’ quest to strike their own documents, however, is a nonstarter.
Defendants cannot use their motion for sanctions as a mechanism to excise potentially
inculpatory documents that they themselves produced. That is simply not the purpose—
or the prerogative—of civil sanctions. For that reason, the Court will restrict its sanction
to the preclusion of the Tolchin Declaration and plaintiffs’ late-produced documents.
There are two primary reasons for tailoring the sanction in this fashion. First, less
onerous sanctions plainly would not suffice. Discovery abuses have played an
unfortunately prolific role in this ligation, forcing the Court to issue numerous
reprimands and discovery sanctions. Regrettably, these less extreme corrective actions—
including, for example, the Court’s April 11, 2013 Order striking plaintiffs’ belated
expert reports and its’subsequent November 19, 2013 Memorandum Order compelling
plaintiffs to cease and desist their third party subpoena efforts—have not deterred
plaintiffs’ misconduct. Indeed, they appear to have had no impact whatsoever.
Furthermore, based on plaintiffs’ history of narrowly interpreting this Court’s orders,
were the Court to limit preclusion to a mere seventy-three late-produced exhibits
appended to plaintiffs’ summary judgment opposition, it is highly likely that plaintiffs
would return with reams of other untimely evidence that is equally prejudicial to
17 This applies even to documents that were created after the close of discovery. It would, of course, have
been impossible for plaintiffs to timely produce documents that were not in existence prior to September
2012. However, because plaintiffs never once sought leave of the Court to introduce these late-produced
exhibits into the record, I find that their preclusion is likewise warranted. Going forward, plaintiffs must
seek leave of the Court to introduce any documents that were created after September 19, 2012.
20
material.1 SeeflPls.’ Opp’n at 9. On August 20, 2012, less.than a month before the
discovery deadline, plaintiffs served on defendants lll 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 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
l:=E—— _ 5:5;
l Plaintiffs argue that defendants are likewise guilty of failing to timely produce documents. See Pls.’
Opp’n at 9. Specifically, plaintiffs claim that defendants initially refused to produce documents in
response to 10 of plaintiffs’ 18 requests for production. See Pls.’ Opp’n Ex. 4 [Dkt. #272-4]. On May 31,
2012, defendants made their first production, consisting of 11 pages, all of which plaintiffs deemed non-
responsive. See Pls.’ Opp’n at 8; Pls.’ Opp’n Ex. 8 [Dkt. #272-8]. Then, on June 8, 2012, defendants
produced approximately 19 pages of Arabic material. See Pls.’ Opp’n at 8. On July 9, 2012, defendants
made “another small production of responsive documents.” Pls.’ Opp’n at 9. However, plaintiffs waited
until after the close of discovery to begin seeking, in earnest, additional materials from defendants.
2 Unsurprisingly, the parties cannot agree on the number of requests in plaintiffs’ supplemental requests.
Although plaintiffs characterize these requests as containing 111 questions, defendants aver that this
constitutes “over 200 document requests and over 45 interrogatories, including subparts.” Defs.’ Mem. at
16.
defendants’ case. Accordingly, the Court is confident that a less stringent sanction would
not meet the needs of justice.
- Second, document preclusion has the benefit of remediating the prejudice to
defendants without precluding a trial on the merits. At the summary judgment phase,
plaintiffs remain free to introduce non-excluded documentary evidence and to rely on
admissible deposition testimony. Should this case proceed to trial, they may call fact
witnesses vital to their case, cross-examine defendants’ witnesses, and make opening and
closing statements. To be sure, this Court’s order does not have either the actual or the
practical effect of dismissal. It merely allows the parties to proceed as they would have
had plaintiffs complied fully with their obligations. Therefore, I find a broad evidentiary
preclusion both just and proportional to the misconduct at issue here and hope that this
sanction puts to rest some of the unfortunate bitterness occasioned by this litigation.
CONCLUSION
Accordingly, for all of the foregoing reasons, the Court GRANTS in Part and
DENIES in part defendants’ Motion for Sanctions. The court GRANTS the motion as it
pertains to plaintiffs’ exhibits and hereby excludes all documents produced by plaintiffs
in this action after September 19, 2012. The Court DENIES the motion as it pertains to
the sixteen exhibits that defendants produced in this action. Plaintiffs shall be given the
opportunity to reconstitute their Opposition to Defendants’ Motion for Summary
Judgement, excluding from that motion and any supporting exhibits, affidavits,
declarations, or statements of material facts, any and all documents produced by plaintiffs
after September 19, 2012. Defendants shall likewise be given the opportunity to
21
reconstitute their Reply in further support of their Motion for Summary Judgment. To
that end, the parties shall jointly, within 14 days of the date of this Memorandum
Opinion, submit a proposed schedule for reconstituting their Summary Judgment papers
in accordance with this ruling. An order consistent with this decision accompanies this
Memorandum Opinion.
United States Dis ict Judge
22
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
" 3 I pause briefly to note that plaintiffs’ productions are significant not only for their tardiness, but also for
their origin. By plaintiffs’ own admission, most of “the material provided as a Rule 26 disclosure” was
“originally obtained by Shurat HaDin [otherwise known as the Israeli Law Center] and subsequently
provided to counsel of record.” 'See Pls.’ Opp’n Ex. 4 at 27 n.4. Defendants are troubled by this reality,
given that Shurat HaDin’s explicit credo is to bankrupt through litigation groups that it perceives to be
terrorist threats. See Defs.’ Mot. Ex. 7 [Dkt. #270-10].
4 The intervening period was not without its disputes. Indeed, on February 14, 2013, several months after
the October 19, 2012 expert disclosure deadline, plaintiffs belatedly disclosed their liability experts. See
Mem. Order [Dkt. #242]. Defendants moved for sanctions, and on April 11, 2013, the Court “prohibited
[plaintiffs] from introducing or using, including on motion or at trial, any expert testimony from” the
experts at issue. See id.
4
were: (1) Israeli court and police records, (2) PFLP website materials, (3) Al J azeera
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.
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
5 Ex. NOS. 15, 16, 19, 20, 26, 27, 31, 35, 37, 42, 43, 45, 50, 51, 52, 53, 54, 55, 56,57, 59, 62, 63, 64, 65,
66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 87, 89, 91, 92,100,106,109,111,112,113,115,
116,117,118,119,131,132,133,135,136,137,138,139,140,141,142,143,144,145,146,150,167,
168, and 169.
6 EX. NOS. 26, 27, 31, 35, 37, 42, 43, 45, 50, 51, 52, 53,54, 55, 56, 57, 59, 62, 63, 64, 65, 66, 67, 68, 69,
71, 72, 73, 74, 75, 76, 77, 78, 79, 81, 87, 89, 91, 92,100,111,112,113,116,118,119,131,132,133,
135,136,137,138,139,140,141,142,143,144,145,146,150,167, and 168.
7 Ex. NOS. 53, 56, 63, 64, 72, 73, 74, 75, 76, 77, 78, 79, 81,119,135,136,137,138,139,140,141,142,
143,144, and 145.
8 Ex. Nos. 26, 27, and 42.
9 Ex. Nos. 31, 37, 43, 50, 51, 52, 54, 55, 57, 59, 62, 65, 66, 67, 68, 69, 71, 91,113,116,131, 146,150,
167, and 168.
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.
DISCUSSION
Discovery disputes are, “for better or worse, the daily bread of . . . district judges
in the age ofthe disappearing trial.” Lee v. Max Int ’1, 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 (DC. 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 US. 574, 598
(1998); see Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (DC.
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 US. 639, 642-
43 (1976) (per curiam); Bonds v. District ofColumbia, 93 F.3d 801, 708 (DC. Cir. 1996)
(“Under Rule 37, the district court has broad discretion to impose sanctions for discovery
6
violations”); Bristol Petrol. Corp. v. Harris, 901 F.2d 165, 167 (DC. 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 Publically 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)(l)(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”
7
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 ati-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 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. Proctor & Gamble
C0., 356 U.S. 677, 682 (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)(l)(A) to provide notice of evidence central to its claims or defenses.” Martino v.
8
KiewitNM 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. a’e C. V., llcv23898, 2010 WL 3260324, at *5 (SD. Fla. Aug. 8, 2010) (“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
w-—== __
1° Plaintiffs cite several cases for the proposition that they need not produce publicly available materials.
None of these cases stands for the proposition, however, that publicly available materials are categorically
exempt from disclosure. Rather, they evince the far narrower proposition that litigants do not necessarily
have an obligation to produce such materials. See, e. g., Tequila Centinela, SA. de C. V. v. Bacardi & Co.
Ltd, 242 F.R.D. 1, 12 (D.D.C. 2007) (noting that courts “may limit discovery requests if the discovery
sought is obtainable from some other source that is more convenient, less burdensome, or less expensive”
(emphasis added) (internal quotation marks omitted»; Dushkin Pub] ’g Grp., Inc. v. Kinko 's Serv. Corp,
136 F.R.D. 334, 335 (D.D.C. 1991) (“It is well established that discovery need not be required of
documents of public record which are equally accessible to all parties.” (emphasis added) (internal
quotation marks omitted». Indeed, in one of the cases plaintiffs cite, the court, after noting the
“discovery need not be required of documents of public record which are equally accessible to all
parties,” nonetheless denied defendant’s motion to exclude public “records of which it was aware and
which it had authority to obtain.” Fitts v. Unum Life Ins. C0., 98-00617(HHK), 2007 WL 1334974, at *19
(D.D.C. May 7, 2007) (internal quotation marks omitted).
11 Despite plaintiffs’ suggestions to the contrary, the duty to produce relevant, publicly available materials
extends to documents in the custody or control of third persons including, for example, Shurat HaDin.
Indeed, if a “disclosing party has the right to obtain copies of those [third party] documents and
anticipates that he or she will use them in support of his or her claims or defenses, the party must either
produce copies of them or provide the requisite description.” 6-26 MOORE’S FEDERAL PRACTICE — CIVIL
§ 26.22 (2015).
II. Appropriateness of Sanctions
Notwithstanding their obligation to produce the contested material, plaintiffs. failed
to do so by the close of discovery. Defendants urge this Court to adopt any number of
sanctions in response, including those sanctions available under Federal Rules
37(b)(2)(A) and 37(c)(l). For the reasons discussed herein, I find that sanctions are
warranted pursuant to Federal Rules l6(f)(l)(C) and 37(b)(2)(A) in order to remedy the
harm caused by plaintiffs’ misconduct and to deter future transgressions.
Rule l6(f)(l)(C) allows courts to “issue any just orders, including those authorized
by Rule 37(b)(2)(A)(ii)-(vii) if a party or its attorney . . . fails to obey a scheduling or
other pretrial order.” Fed. R. Civ. P. l6(f)(l)(C). This is plainly the case here.
Plaintiffs, eager to shoehorn their conduct beneath the aegis of acceptability, urge this
Court to view their “late productions as “supplemental disclosures” required by Federal
Rule 26(e). See Pls.’ Opp’n at 30-31. Unfortunately for plaintiffs, I disagree. While
Rule 26(e) imposes on all litigants a duty to timely supplement their productions, it is
not a safe harbor for dilatory conduct. Quite the opposite, in fact. Rule 26(e) states that
once a party has responded to a request for production, it must supplement its disclosure
“in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional corrective information has not
otherwise been made known to the other parties during the discovery process.” Fed. R."
Civ. P. 26(e)(l)(A). Rule 26(e) does not sanction late disclosure for late disclosure’s
sake. Nor is it a license to sandbag the opposing party with reams of pertinent
information on the eve of summary judgment. Simply stated, Rule 26(e) is not, nor has
10