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Wultz v. Bank of China Ltd.

United States District Court, S.D. New York

July 21, 2014

SHERYL WULTZ, et al., Plaintiffs,
v.
BANK OF CHINA LIMITED, Defendant. RIVKA MARTHA MORIAH, et al., Intervenors, THE STATE OF ISRAEL, Movant

Page 487

For Plaintiffs: David Boies, Esq., Mary Boies, Esq., Lee S. Wolosky, Esq., Steen I. Froot, Esq., Marilyn C. Kunstler, Esq., Joseph W. Dunn, Esq., Boies, Schiller & Flexner LLP, New York, NY.

For Intervenors: Robert Joseph Tolchin, Esq., Aalok J. Karambelkar, Esq., The Berkman Law Office, LLC, Brooklyn, NY.

For Defendant: Mitchell R. Berger, Esq., Patton Boggs LLP (DC), Washington, D.C.; Lanier Saperstein, Esq., William G. Primps, Esq., Neil McDonell, Esq., Eric Epstein, Esq., Daniel Goldberger, Esq., H. Alex Iliff, Esq., Geoffrey Sant, Esq., Dorsey & Whitney LLP, New York, NY.

For State of Israel: Stewart D. Aaron, Esq., John B. Bellinger, III, Esq., Arnold & Porter LLP, New York, NY.

Page 488

OPINION AND ORDER

Shira A. Scheindlin, United States District Judge.

I. INTRODUCTION

This suit arises out of the death of Daniel Wultz and the injuries of Yekutiel Wultz, suffered in a 2006 suicide bombing in Tel Aviv, Israel. Four members of the Wultz family brought suit against Bank of China (" BOC" ), alleging acts of international terrorism under the Antiterrorism Act (" ATA" ),[1] among other claims.

All of Plaintiffs' non-federal claims against BOC have been dismissed.[2] In addition, Plaintiffs' attempt to hold BOC liable for aiding and abetting international terrorism under the ATA has been categorically foreclosed by the Second Circuit.[3]

Page 489

Plaintiffs' only remaining claim against BOC is for acts of international terrorism under the ATA, based on BOC allegedly having provided material support and resources to a terrorist organization.[4]

The general facts and procedural history of this case and Plaintiffs' numerous attempts to obtain discovery from BOC were laid out in previous opinions and familiarity with them is assumed.[5] Before this Court is a motion filed by nonparty the State of Israel (" Israel" ) to quash a deposition subpoena served on Uzi Shaya, a former Israeli national security officer.[6] Israel argues that the subpoena should be quashed because it (1) violates Israel's sovereign immunity, (2) seeks sensitive national security information that constitutes foreign state secrets, and (3) contravenes Federal Rule of Civil Procedure 45.[7] For the following reasons, Israel's motion is GRANTED.

II. BACKGROUND

A. Uzi Shaya

Shaya is a former Israeli government official, who was involved in Israeli national security matters between 1984 and 2007.[8] From 2004 to 2007, Shaya was an official in Israel's National Security Council working with the Interagency Task Force for Combating Terrorist Financing and Financing of State Sponsors of Terrorism (" Task Force" ).[9] The Task Force worked to prevent terrorism by preventing the flow of funds to terrorist organizations.[10] According to Plaintiffs, the Task Force learned in 2004 of a terrorist financing cell involving BOC.[11] The cell was operated by Said al-Shurafa (" Shurafa" ), other members of the Shurafa family in Gaza, senior leaders of the Palestinian Islamic Jihad (" PIJ" ), and Hamas.[12] From 2003 to

Page 490

2008, the Shurafas used the BOC bank accounts held in their names (" Shurafa Accounts" ) to launder millions of dollars to PIJ and Hamas operatives in Gaza and the West Bank.[13]

In 2005, Shaya and other members of the Task Force met with representatives of the People's Bank of China -- BOC's chief regulator -- to inform them that the Shurafa Accounts were being used to finance PIJ and Hamas.[14] The Task Force asked the Chinese representatives to close the Shurafa Accounts.[15] The Chinese representatives declined to do so.[16] One year later, on April 17, 2006, PIJ operatives executed a suicide bombing that killed Daniel Wultz and seriously injured Yekutiel Wultz.

In 2009, Plaintiffs filed their Amended Complaint in the D.C. District Court.[17] In October 2012, Plaintiffs and their counsel met with Shaya to determine whether he was willing to testify on Plaintiffs' behalf.[18] On March 20, 2013, Shaya sent Plaintiffs' counsel a letter stating,

I have been contacted on behalf of plaintiffs ... to voluntarily testify . . . . Due to my previous employment and involvement in matters relating to Israel state security, I would like to underscore, that should I decide to testify, although I would testify as a private citizen [] in classified matters and matters relating to the security of the State of Israel and certain individuals, I am bound to ...

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