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Sokolow v. Palestine Liberation Organization

United States District Court, Second Circuit

October 24, 2013

MARK I. SOKOLOW, et al., Plaintiffs,
v.
PALESTINE LIBERATION ORGANIZATION, et al., Defendants.

MEMORANDUM OPINION & ORDER

RONALD L. ELLIS, Magistrate Judge.

I. INTRODUCTION

Plaintiffs are family members, guardians, and personal representatives of the estates of United States citizens who were allegedly killed and injured in terrorist attacks in Jerusalem, Israel, between January 8, 2001, and January 29, 2004. Defendants are the Palestine Liberation Organization ("PLO"), the Palestinian Authority ("PA"), and several individuals Plaintiffs allege were responsible for planning and carrying out the killings and injuries. Plaintiffs bring suit under the Anti-Terrorism Act of 1991 ("ATA"), 18 U.S.C. § 2331 et seq., for international terrorism, and related torts. On March 12, 2012, after protracted discussions and objections, the Court imposed a Protective Order Regarding Confidentiality of Discovery Material ("the Protective Order" or "the Order") (Doc. No. 219). Before the Court is Defendants' request to sanction Plaintiffs and/or their counsel, Robert Tolchin, for violating the Protective Order. On October 15, 2013, the Court held a teleconference with the Parties to conduct a factual inquiry. Although the Court will not impose sanctions at this time, Tolchin is ORDERED TO SHOW CAUSE why personal sanctions, including under 28 U.S.C. § 1927, should not be imposed upon him for intentionally violating the Protective Order.

II. BACKGROUND

Defendants claim that Tolchin violated the Protective Order when he disclosed employment information regarding two employees of the PA in a Declaration filed before the United States District Court for the District of Columbia. Pursuant to the Protective Order, the Parties may not disclose information that is designated "Confidential." (Doc. No. 219 ¶ 2(f).) Portions of discovery material that "relate to personal private financial or employment information" may be designated "Confidential." ( Id. ¶ 2(a).) The Protective Order sets forth a detailed procedure that parties may employ to challenge the "Confidential" designation. ( Id. ¶ 14.)

This dispute arises from an allegation by Tolchin that Defendants' witness proffered false testimony in an unrelated case. The unrelated case, Gilmore v. Palestinian Interim Self-Government Authority, No. 01-853 (GK) ("Gilmore"), is legally and factually distinct from Sokolow, but the Gilmore Plaintiffs have named many of the same Defendants, and are also represented by Tolchin. Gilmore is pending before the United States District Court for the District of Columbia.

On September 9, 2013, Tolchin emailed Defendants' counsel, Brian Hill, regarding a discrepancy between testimony submitted in Gilmore, and documents produced as part of discovery in Sokolow. (Letter from Defendants, October 4, 2013, Ex. 2 at 2.) Tolchin alleged that one of Defendants' witnesses had offered false testimony in Gilmore. (Id.) In support of his allegation, Tolchin cited the witness's deposition testimony in Gilmore, and compared it to contrary information contained in the Sokolow discovery documents. (Id.) The Sokolow documents had been designated by Defendants as "Confidential." In his email to Hill, Tolchin stated: "We find it troubling that defense counsel failed to inform the Gilmore plaintiffs or the Court of these facts when they became known to you..." (Id.) Tolchin further admonished Hill for having "improperly designated all of the aforementioned documents, in their entirety, as confidential, ' purportedly under the Protective Order... even though the information contained in those documents is not confidential.'" ( Id. ) Tolchin requested that Defendants remove the confidentiality designations in the relevant documents. ( Id. ) On September 12, 2013, Hill responded: "Defendants do not agree to your request." ( Id. at 1.) The Court has not received any indication that Tolchin responded to Hilf's September 12 email.

Nearly three weeks later, on October 1, 2013, Tolchin submitted a "Declaration of Robert J. Tolchin" ("Declaration") via ECF in Gilmore in which he wrote:

2. Documents filed by the Palestinian Authority ("PA") in the Sokolow case from its own files, including documents bates numbered 02:009501-9504 and 02:009642-9652, which defendants have improperly marked as "confidential" (and so cannot be submitted in Gilmore at this time), show that contrary to his deposition testimony in the instant case [CONFIDENTIAL INFORMATION].
3. The documents, which are marked confidential in Sokolow and cannot be placed before this Court at this time due to the terms of the confidentiality order, detail the [CONFIDENTIAL INFORMATION] and contradict the defendant's assertion.... The defendants should not be permitted to use that confidentiality order as a sword and a shield, advocating a position they know is false while hiding behind the obscurantist designation of incriminating documents that would refute their position as confidential.' If defendants' counsel do not promptly inform this Court of the truth of [CONFIDENTIAL INFORMATION], which is their duty as officers of this Court, the plaintiffs will seek appropriate relief
4. Defendants have also produced documents in the Sokolow Case showing that [CONFIDENTIAL INFORMATION]. Defendants have improperly marked these documents as "confidential" (and so they cannot be submitted in Gilmore at this time), despite the fact that [CONFIDENTIAL INFORMATION] is not confidential and is also referenced in his statement of April 16, 2002 to the Israeli police.

(Declaration of Robert J. Tolchin, ¶ 2-4.)

On October 4, 2013, Hill submitted a letter to the Court requesting an informal conference, pursuant to Local Civil Rule 37.2 and this Court's Individual Practice Rule 2.A, to determine whether To!chin had violated the Protective Order. (Letter from Defendants, October 4, 2013 at 1.) On October 10. 2013, To!chin responded. In his defense, he stated: (1) the Declaration does not violate the Protective Order because To!chin was "extremely careful to describe [the documents] in the most general terms without disclosing any even arguably confidential information"; and (2) the Court should instead sanction defense counsel for abusing the Protective Order. (Letter from Plaintiffs, October 10, 2013 at 1.) Further letters were exchanged, and, on October 15, 2013, the Court held a teleconference to conduct a factual inquiry into the allegations of both attorneys' misconduct. When asked why he did not challenge the confidentiality designation before the Court rather than risk violating the Protective Order, Tolchin said that he did not think it was necessary because he framed the Declaration in a manner to avoid revealing confidential ...


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