The plaintiffs in the 13-year-old case submitted nearly 70 percent of their discovery materials – more than 6,000 pages of documents – after the September 2012 discovery deadline, U.S. District Judge Richard Leon found.
“I am hard-press to view their conduct as anything other than shoddy gamesmanship,” the 22-page opinion Leon handed down last week states.
Barring the plaintiffs from using any materials submitted after the discovery deadline, Leon said their “habit of creatively interpreting – and at times, altogether ignoring – this court’s admonishments simply cannot be tolerated.”
Sanctions are necessary to remedy prejudice to the defendants – the Palestinian Authority and the Palestinian Liberation Organization – and “to stop a pattern of misconduct that has become all too rote,” Leon wrote.
Summing up the case’s “long and tortured history,” Leon noted that both sides have accused the other “of every manner of skullduggery.”
The underlying terrorist attack killed two U.S. citizens in an Israeli settlement in the Palestinian West Bank. Shabtai Scott Shatsky is the lead plaintiff for a group of U.S. citizens, guardians, family members or personal representatives of those killed and injured in the attack, for which the Popular Front for the Liberation of Palestine claimed responsibility.
Leon said he rejected requests for relief from the discovery deadline as “meritless and untimely,” and so the plaintiffs have been “peppering the court with discovery motions.”
Though section 26(e) of the Federal Rules of Civil Procedure “doees not sanction late disclosure for late disclosure’s sake,” Leon emphasized in his Nov. 20 ruling that the rule “is not, nor has it ever been, carte blanche to ignore court-imposed deadlines.”
The plaintiffs failed to sway the court that their late disclosures were appropriate since the documents at issue were publicly available.
Such a limitation “would lead to patently absurd consequences,” Leon wrote.
“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,” the opinion states.
Leon added that “litigation is not, nor has it ever been, an elaborate parlor game of ‘blind man’s buff.'”
The defendants objected to the inclusion of the plaintiffs’ late discovery and filed a motion for summary judgment and sanctions on August 12, 2013, to exclude 89 late exhibits introduced by the plaintiffs.
Leon said some of the documents were available well before the September 2012 discovery deadline, as early as 2009.
The plaintiffs introduced 73 of those documents after the close of discovery, including 64 after the court rejected their request for additional discovery in January 2013, according to the ruling. Twenty-five of the documents in question were produced after the defendants filed for summary judgment, the court noted.
The plaintiffs’ attorney, Robert J. Tolchin with the Berkman Law Office in Brooklyn, N.Y., added a declaration to its opposition, which contained many of the late documents, including 25 documents from stricken expert testimony from the Israel Law Center.
To excuse this, the plaintiffs claimed that the court order excluding the expert testimony did not include documents underpinning their reports, Leon summarized.
“This interpretation is too clever by half and is, in all events, woefully inaccurate,” he wrote. “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.”
Including Israel Law Center documents is especially troubling because the organization’s “explicit credo is to bankrupt through litigation groups that it perceives to be terrorist threats,” Leon wrote in a footnote.
The defendants saw this “as a calculated attempt to thwart their defense,” the opinion states.
Meanwhile the late discovery meant that the defendants had no recourse to take “any additional depositions to further investigate the late-breaking disclosures,” Leon wrote.
The late disclosures “materially altered the evidentiary landscape after defendants filed for summary judgment relief,” according to the ruling.
“Conduct of this ilk is neither just nor fair, and it is certainly a far cry from ‘civil,'” Leon concluded. “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.”
When reached for comment, the plaintiffs’ attorney, Tolchin, pointed to papers his team filed in the case that “spell out our disagreement that there were any discovery violations. “
“Notwithstanding the Court’s latest order, we will continue to pursue the claims of our clients who were killed and those who were severely injured by terrorists and the support provided by the defendants in this case,” Tolchin added in an email.
Though the plaintiffs argued that the defendants failed to produce discovery materials in a timely fashion, Leon noted that he denied a request by the defendants to strike some of their own “potentially inculpatory documents that they themselves produced.”
Mark Rochon, an attorney for the defendants with Miller & Chevalier, declined to comment.
Leon filed a three-page order with the lengthy Nov. 20 opinion on sanctions.
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