BBC Footage for Arafat Film Can't Stay in Dark
(CN) - The BBC must produce unedited footage from its program "Arafat Investigated" to the family of a teacher gunned down by terrorists in Israel, a federal judge ruled.
The family of Esther Klieman sued the Palestinian Liberation Organization, the Palestinian Authority, Fatah and several of the groups' members in 2004, claiming that terrorists belonging to the Al-Aqsa Martyrs Brigade fired on a public bus transporting Klieman and others near Neve Tzuf, Israel, on March, 24, 2002. Klieman, a kindergarten teacher and an American citizen, was struck in the heart and killed.
"Defendants carried out scores of terrorist attacks, murdering hundreds of innocent Israeli civilians and injuring thousands more, including ... the murder of Esther Klieman," their complaint stated.
During the discovery process, the family served the BBC with a subpoena to compel the British broadcasting service to produce a complete and unedited copy of its 2003 program "Arafat Investigated." The family also wanted unedited copies of interviews and outtakes of other Palestinian leaders.
A federal magistrate judge quashed the subpoena last year, finding that no person with knowledge of the relevant matter worked or resided within 100 miles of the D.C. court.
U.S. District Judge Paul Friedman found Thursday, however, that the magistrate judge had not considered whether the subpoena could be modified to comply with the rules.
Even if the BBC does not employ anyone within 100 miles of Washington, D.C., who could testify about the documentary, the plaintiffs may still subpoena documents no matter where those documents are located, according to the ruling.
Friedman found that the interviews in the documentary "go to the heart of plaintiffs' theory of liability, i.e., that the PA-PLO supported and controlled Al-Aqsa during the relevant time period. Furthermore, plaintiffs have demonstrated that their need for the information is far from merely speculative."
He recognized "the vital function of newsgathering organizations and acknowledge[d] the threats to journalists' safety and their ability to collect information if they are perceived as readily handing over information to the courts. But the importance of this consideration is weaker where, as here, a reporter's source agrees to openly participate in a recorded interview, with the understanding that portions of the interview will be broadcast by a major news network."
Even if the requested evidence is hearsay and would not be admissible at trial, the federal rules of civil procedure clearly state that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence," according to the 17-page opinion.
Friedman ordered the BBC to produce "the requested documentary material, accompanied by one or more affidavits attesting to the authenticity of the 2003 documentary and the outtakes."