United States District Court, S.D. New York
Robert Joseph Tolchin, Esq., Aalok J. Karambelkar, Esq., The Berkman Law Office, LLC, Brooklyn, NY, For Plaintiffs.
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 Defendant.
Steward D. Aaron, Esq., Arnold & Porter, LLP, New York, NY.
John Bellinger III, Esq., Robert A. DeRise, Esq., Robert N. Weiner, Esq., Arnold & Porter, LLP (DC), Washington, D.C. For Joseph Ciechanover.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
On October 14, 2014, the Court, on plaintiffs' motion, issued an order to show cause why a subpoena should not issue for Joseph Ciechanover to give deposition testimony regarding a phone call he placed to plaintiffs' counsel in the related Wultz v. Bank of China case regarding the possibility of settlement. In his response, Ciechanover argued that the subpoena should not issue for two reasons: (1) it would not serve the interests of justice; and (2) Ciechanover has testimonial immunity as an agent for the State of Israel. I held a hearing on the matter on November 25, 2014, during which I ordered that plaintiffs could propound interrogatories to Ciechanover concerning the capacity in which Ciechanover approached plaintiffs' counsel to determine whether he acted as an agent for the State of Israel. Plaintiffs served a list of forty-four questions, some with multiple subparts, to Ciechanover. On December 15, 2014, Ciechanover agreed to voluntarily respond to five of those questions that he deemed "consistent with the parameters established by the Court." Plaintiffs now move either to compel Ciechanover to answer the remaining questions or to draw every inference favorable to the plaintiffs with respect to the unanswered questions and direct Ciechanover to appear for a deposition. For the reasons set forth below, plaintiffs' motion is DENIED because Ciechanover is immune from compelled testimony.
Plaintiffs seek to depose Ciechanover in connection with a future application for a spoliation sanction. Plaintiffs had sought testimony from Uzi Shaya, a former Israeli national security officer. The State of Israel, after initially supporting Plaintiffs' attempts to secure Shaya's testimony, later withdrew that support.
Plaintiffs allege that Israel withdrew its support for Shaya's testimony because of pressure exerted on Israel by the People's Republic of China, and claim that Ciechanover has information regarding this alleged pressure. Specifically, plaintiffs allege that Ciechanover contacted the Wultz plaintiffs' counsel, Lee Wolosky, "on behalf of Israeli Prime Minister Netanyahu, in an attempt to broker a settlement of the law suit against BOC." Plaintiffs allege that "[d]uring that conversation, Ciechanover indicated that Israel's diplomatic relationship with China was the reason that Israel had rescinded its authorization for Shaya to testify and that he had been asked by Netanyahu to try to negotiate a settlement of the case to avoid further embarrassment for Israel."
Ciechanover responded to the order to show cause and attached a declaration explaining the facts surrounding the phone call at issue. According to his declaration, Ciechanover states that in his capacity as a senior advisor to the Government of Israel, he was contacted by the Prime Minister's Office in late - and asked to contact the parties' counsel in Wultz and inquire whether the parties might be amenable to an out-of-court resolution of the lawsuit. He further states that he was not provided with any further information regarding the case. He contacted the Wultz plaintiffs' counsel, Lee Wolosky, by phone in October 2013, and was informed that "the lawyers for the parties were not on speaking terms' and that [Wolosky] did not believe that the Bank of China's U.S. counsel had authority to agree to an out-of-court resolution." The phone call lasted "less than five minutes." He then reported the content of the call to the Prime Minister's Office and had no further involvement in the matter.
During the conference addressing this matter, Mr. Wolosky made a statement under oath regarding the content of this phone call. He stated that Ciechanover "identified himself as a former Israeli government official" and explained that he was "occasionally called upon to solve problems for Israel." Mr. Wolosky stated that the conversation lasted about twenty to thirty minutes. When questioned by the Court, Mr. Wolosky relayed that Ciechanover did not represent himself as an agent of the government of Israel. Rather, Mr. Wolosky "viewed him as a mechanism that had been created to enable" a discussion regarding a resolution of the case, but not as an individual "acting on behalf of Israel."
In response to plaintiffs' interrogatories, Ciechanover explained that he has been a "senior advisor to various high-ranking Israeli government officials, " including four Israeli prime ministers, after his retirement from civil service. In this capacity, he "provide[s] insight on a given issue or assist[s] on particular assignments... ranging from nearly full-time projects over the course of several months to... a single phone call." In this case, he was asked by the then-Israeli National Security Advisor and head of the National Security Counsel, Major General (Res.) Yaacov Amidror, to contact the Wultz plaintiffs' counsel and inquire whether the parties would consider resolving their claims out of court. After contacting Mr. Wolosky, Ciechanover again spoke to General Amidror to inform him about the call. Ciechanover states that he was "acting as an agent of the State of Israel in the sense that [his] call to Mr. Wolosky was made at the request of and at the ...