Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 1 of 52
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
--------------------------------------------------------------------- X
SHERYL WULTZ, et al.,
Plaintiffs,
-againstMiscellaneous Docket No.:
13-1282 (RBW)
BANK OF CHINA LIMITED,
Defendant,
-againstRIVKA MARTHA MORIAH, et al.,
Intervenors-Plaintiffs,
Civil case number 11-1266
(SAS) pending in the United
States District Court for the
Southern District of New York
-againstTHE STATE OF ISRAEL,
Movant.
--------------------------------------------------------------------- X
INTERVENOR-PLAINTIFFS’ MEMORANDUM OF LAW
IN OPPOSITION TO NON-PARTY STATE OF ISRAEL’S
MOTION TO QUASH SUBPOENA
THE BERKMAN LAW OFFICE, LLC
Counsel for the Intervenors-Plaintiffs
111 Livingston Street, Suite 1928
Brooklyn, New York 11201
(718) 855-3627
CADWALADER, WICKERSHAM & TAFT, LLP
Counsel of record to the Intervenors as to state
secrets and sovereign immunity issues
700 Sixth Street, N.W.
Washington, D.C. 20001
202-862-2200
One World Financial Center
New York, New York 10201
212-504-6000
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 2 of 52
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ......................................................................................................... iii
PRELIMINARY STATEMENT .....................................................................................................1
BACKGROUND AND STATEMENT OF THE CASE .................................................................3
ARGUMENT ...................................................................................................................................9
I.
ISRAEL’S MOTION TO QUASH SHOULD BE TRANSFERRED TO THE
SOUTHERN DISTRICT OF NEW YORK .........................................................................9
II.
ISRAEL LACKS STANDING TO QUASH THE SUBPOENA AS IT IS NOT A
PARTY AND HAS NOT INTERVENED ........................................................................10
III.
EVEN IF ISRAEL HAS STANDING TO RAISE OBJECTIONS ON BEHALF
OF MR. SHAYA, ITS MOTION TO QUASH WAS NOT TIMELY FILED AND
SHOULD BE REJECTED .................................................................................................12
IV.
MOVANT HAS FAILED TO MEET ITS BURDEN OF SHOWING THAT
SOVEREIGN IMMUNITY PRECLUDES MR. SHAYA’S DEPOSITION ....................12
V.
A.
The Voluntary Deposition of a Former Official on Matters of Public
Record Is Not Entitled to Sovereign Immunity Protection ....................................13
B.
Movant Waived Any Claim to Immunity by Affirmatively Disclosing
Information to Pursue its Goals Through United States Courts ............................16
THERE IS NO STATE SECRET PROTECTION APPLICABLE TO MR.
SHAYA’S DEPOSITION..................................................................................................20
A.
The State Secrets Privilege Only Protects Secrets of the United States ................20
B.
Any “State Secret Privilege” Was Lost When Movant Voluntarily
Disclosed to Plaintiffs the Very Information it Now Claims Is Privileged ...........23
C.
Movant’s Invocation of the State Secrets Privilege Is Facially Deficient
and the Amidror Declaration Should Be Stricken .................................................27
D.
The Balance of Interests Requires the Court to Uphold the Subpoena..................28
VI.
ISRAEL LACKS STANDING TO RAISE THE 100-MILE RULE .................................31
VII.
IF THE AMIDROR DOCUMENT IS NOT STRICKEN, INTERVENORPLAINTIFFS SHOULD BE PERMITTED TO CROSS-EXAMINE AMIDROR ...........32
A.
Amidror is a “Witness” Subject to the Federal Rules of Evidence........................33
-i-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 3 of 52
B.
Fifth Amendment Due Process Entitles Plaintiffs to Cross-Examine the
Government’s Affiant and Overrides Sovereign Immunity...................................35
VIII.
ISRAEL IS NOT ENTITLED TO THE BENEFITS OF COMITY IF IT IS NOT
WILLING TO RECIPROCATE ........................................................................................36
IX.
ISRAEL IS BARRED BY ESTOPPEL UNDER ISRAELI LAW FROM
RENEGING ON ITS COMMITMENT TO PRODUCE UZI SHAYA AND
OTHER EVIDENCE IN SUPPORT OF THIS CASE ......................................................38
CONCLUSION ..............................................................................................................................40
-ii-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 4 of 52
TABLE OF AUTHORITIES
PAGE(S)
CASES:
Agudas Chasidei Chabad of U.S. v. Russian Fed’n,
528 F.3d 934 (D.C. Cir. 2008) .................................................................................................17
Al-Aulaqi v. Obama,
727 F. Supp. 2d 1 (D.D.C. 2010) .............................................................................................21
Baker v. Booz Allen Hamilton, Inc.,
358 F. App’x 476 (4th Cir. 2009) ............................................................................................39
Bareford v. Gen. Dynamics Corp.,
973 F.2d 1138 (5th Cir. 1992) .................................................................................................21
Branch v. Hempstead Cty. Mem’l Hosp.,
539 F. Supp. 908 (W.D. Ark. 1982).........................................................................................36
Brault v. Town of Milton,
527 F.2d 730 (2d Cir. 1975).....................................................................................................35
Brown v. Braddick,
595 F.2d 961 (5th Cir. 1979) ............................................................................................. 10-11
Burnett v. Al Baraka Inv. & Dev. Corp.,
323 F. Supp. 2d 82 (D.D.C. 2004) ...........................................................................................21
Calhoun v. Cook,
487 F.2d 680 (5th Cir 1973) ....................................................................................................36
Califano v. Yamasaki,
442 U.S. 682 (1979) .................................................................................................................36
Carey v. Bahama Cruise Lines,
864 F.2d 201 (1st Cir. 1988) ....................................................................................................39
Coffin v. Sullivan,
895 F.2d 1206 (8th Cir.1990) ..................................................................................................32
Compagnie Francaise d’Assurance Pour le Commerce Exterieur
v. Phillips Petrol. Co.,
105 F.R.D. 16 (S.D.N.Y. 1984) ......................................................................................... 21-22
Davis v. Alaska,
415 U.S. 308 (1974) .................................................................................................................32
-iii-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 5 of 52
PAGE(S)
Dist. of Colum. v. Int’l Distrib. Corp.,
331 F.2d 817 (D.C. Cir. 1964) .................................................................................................38
Ellsberg v. Mitchell,
709 F.2d 51 (D.C. Cir. 1983) ...................................................................................................20
Fotso v. Rep. of Cameroon,
No. 6:12 CV 1415-TC, 2013 WL 3006338 (D. Or. June 11, 2013) ........................................15
Ghana Supply Comm’n v. New Eng. Power Co.,
83 F.R.D. 586 (D. Mass. 1979) ................................................................................................22
Giraldo v. Drummond Co.,
808 F. Supp. 2d 247 (D.D.C. 2011), aff’d, 493 F. App’x 106 (D.C. Cir. 2012),
cert. denied, 133 S. Ct. 1637 (2013) .................................................................................. 14-15
Giraldo v. Drummond Co.,
493 F. App’x 106 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 1637 (2013) ..............................16
Gotlin v. Lederman,
616 F. Supp. 2d 376 (E.D.N.Y. 2009), aff’d in part, vacated in part,
483 F. App’x 583 (2d Cir. 2012) (Summary Order) ................................................................28
Guralnick v. Sup. Ct. of N.J.,
747 F. Supp. 1109 (D.N.J. 1990), aff’d, 961 F.2d 209 (3d Cir. 1992).....................................36
Harries v. United States,
350 F.2d 231 (9th Cir. 1965) ...................................................................................................36
In re Edelman,
295 F.3d 171 (2d Cir. 2002).....................................................................................................31
In re Grand Jury Subpoena dated Aug. 9, 2000,
218 F. Supp. 2d 544 (S.D.N.Y. 2002)..........................................................................21, 22, 23
In re Papandreou,
139 F.3d 247 (D.C. Cir. 1998) .................................................................................................23
In re Rhodes Cos., LLC,
475 B.R. 733 (D. Nev. 2012) ...................................................................................................10
In re Sealed Case (Espy),
121 F.3d 729 (D.C. Cir. 1997) .................................................................................................23
-iv-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 6 of 52
PAGE(S)
In re Sealed Case (Horn),
494 F.3d 139 (D.C. Cir. 2007) ...........................................................................................21, 26
In re United States,
872 F.2d 472 (D.C. Cir. 1989) .................................................................................................21
In re Veiga,
746 F. Supp. 2d 27 (D.D.C. 2010) ...........................................................................................28
In re Yassai,
225 B.R. 478 (Bankr. C.D. Cal. 1998) .....................................................................................10
Ins. Corp. of Hanover v. Vantage Prop. Mgmt., LLC,
No. 04-1012-CV-W-SOW, 2006 WL 1131759 (W.D. Mo. Apr. 25, 2006) ............................31
Jencks v. United States,
353 U.S. 657 (1957) .................................................................................................................24
Jenkins v. Anderson,
447 U.S. 231 (1980) .................................................................................................................34
Jones v. Wildgen,
320 F. Supp. 2d 1116 (D. Kan. 2004) ......................................................................................36
Kessler v. Best,
121 F. 439 (S.D.N.Y. 1903) ............................................................................................... 22-23
Larson v. Domestic & Foreign Com. Corp.,
337 U.S. 682 (1949) ...........................................................................................................13, 14
Liberian E. Timber Corp. v. Gov’t of Rep. of Liberia,
650 F. Supp. 73 (S.D.N.Y. 1986), aff’d, 854 F.2d 1314 (2d Cir. 1987) ..................................18
Lidy v. Sullivan,
911 F.2d 1075 (5th Cir. 1990) .................................................................................................32
Matar v. Dichter,
563 F.3d 9 (2d Cir. 2009) ........................................................................................................15
Molerio v. FBI,
749 F.2d 815 (D.C. Cir. 1984) ...........................................................................................21, 26
Nat’l Lawyers Guild v. Att’y Gen.,
96 F.R.D. 390 (S.D.N.Y. 1982) ............................................................................. 20-21, 24, 27
-v-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 7 of 52
PAGE(S)
Nevels v. Hanlon,
656 F.2d 372 (8th Cir. 1981) ...................................................................................................35
Northrop Corp. v. McDonnell Douglas Corp.,
751 F.2d 395 (D.C. Cir. 1984) ..................................................................................... 21, 26-27
Odhiambo v. Rep. of Kenya,
930 F. Supp. 2d 17 (D.D.C. 2013) ...........................................................................................17
Phila. Co. v. SEC,
175 F.2d 808 (D.C. Cir. 1948), vacated & remanded as moot (per jt. stip.),
337 U.S. 901 (1949) .................................................................................................................35
Pravin Banker Assocs., Ltd. v. Banco Popular Del Peru,
109 F.3d 850 (2d Cir. 1997).....................................................................................................38
Reserve Solutions, Inc. v. Vernaglia,
No. 05 Civ. 8622 VM RLE, 2006 WL 1788299 (S.D.N.Y. June 26, 2006) ............................11
Richardson v. Att’y Gen. of British V.I.,
No. CV 2008-144, 2013 WL 4494975 (D.V.I. Aug. 20, 2013) ...............................................15
Rosenberg v. Lashkar-e-Taiba,
No. 10-CV-5381 DLI CLP, 2013 WL 5502851 (E.D.N.Y. Sept. 30, 2013) ...........................15
Roviaro v. United States,
353 U.S. 53 (1957) ...................................................................................................................24
Salem Vegas, L.P. v. Guanci,
No. 2:12-CV-01892-GMN, 2013 WL 5493126 (D. Nev. Sept. 30, 2013) ..............................10
Samantar v. Yousuf,
560 U.S. 305 (2010) .....................................................................................................13, 16, 17
SEC v. Tucker,
130 F.R.D. 461 (S.D. Fla. 1990) ..............................................................................................11
Siderman de Blake v. Rep. of Arg.,
965 F.2d 699 (9th Cir. 1992) ....................................................................................... 17-18, 19
Smith v. Ghana Com’l Bank, Ltd.,
No. CIV. 10-4655 DWF/JJK, 2012 WL 2930462 (D. Minn. June 18, 2012),
report & recommendation adopted, No. CIV. 10-4655 DWF/JJK, 2012 WL 2923543
(D. Minn. July 18, 2012), aff’d, No. 12-2795 (8th Cir. Dec. 7, 2012).....................................15
-vi-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 8 of 52
PAGE(S)
Smith v. Socialist People’s Libyan Arab Jamahiriya,
101 F.3d 239 (2d Cir. 1996).....................................................................................................17
Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa,
482 U.S. 522 (1987) .................................................................................................................29
United States v. Am. Tel. & Tel. Co.,
86 F.R.D. 603 (D.D.C. 1979).............................................................................................24, 27
United States v. Higginbotham,
539 F.2d 17 (9th Cir. 1976) .....................................................................................................34
United States v. Jones,
677 F. Supp. 238 (S.D.N.Y. 1988)...........................................................................................14
United States v. Reynolds,
345 U.S. 1 (1953) .....................................................................................................................21
Weiming Chen v. Ying-jeou Ma,
No. 12 CIV. 5232 NRB, 2013 WL 4437607 (S.D.N.Y. Aug. 19, 2013) .................................15
Wultz v. Islamic Rep. of Iran,
755 F. Supp. 2d 1 (D.D.C. 2010), reconsidered in part,
762 F. Supp. 2d 18 (D.D.C. 2011) .............................................................................................1
Yousuf v. Samantar,
699 F.3d 763 (4th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3503
(U.S. Mar. 4, 2013) (No. 12-1078) ..........................................................................................14
Zinter Handling, Inc. v. GE Co.,
No. 04-CV-500, 2006 WL 3359317 (N.D.N.Y. Nov. 16, 2006) .............................................11
STATUTES & OTHER AUTHORITIES:
18 U.S.C. § 2339B .........................................................................................................................30
28 U.S.C.:
§ 1605(a)(1) .............................................................................................................................17
§ 1746.......................................................................................................................................27
-vii-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 9 of 52
PAGE(S)
Fed. R. Civ. P.:
43(c) ................................................................................................................................... 32-33
44.1...........................................................................................................................................39
45(c)(2) ....................................................................................................................................12
45(c)(3)(A) .........................................................................................................................12, 31
45(c)(3)(A)(ii) ..........................................................................................................................31
45(f)............................................................................................................................................9
45(f) advisory comm. notes (2013 Amend.) ..............................................................................9
Fed. R. Evid.:
607......................................................................................................................................33, 34
611(b) .......................................................................................................................................33
L. Civ. Rule 5.1(h)(2) ....................................................................................................................27
5 John Henry Wigmore, Evidence in Trials at Common Law § 1367 (James H. Chabourn
ed., Little Brown 1974) ............................................................................................................32
8 Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. ¶ 2019 (1970) ..................... 20-21
9A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.: Civ. 3d § 2444
(2008 & Supp. 2013)................................................................................................................39
26 Charles Alan Wright et al., Fed. Prac. & Proc.: Evid 3d § 5665
(2008 & Supp. 2013)................................................................................................................24
Restatement (Second) of Foreign Relations Law (1965):
§ 66...........................................................................................................................................13
§ 66 cmt. b, illus. 2...................................................................................................................13
Restatement (Third) of Foreign Relations Law § 442(1)(c) (1987) ...............................................29
Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or
Commercial Matters:
art. 5 ................................................................................................................................... 37-38
art. 7 ................................................................................................................................... 37-38
art. 9 ................................................................................................................................... 37-38
art. 12 ................................................................................................................................. 37-38
Jules Epstein, Cross-Examination: Seemingly Ubiquitous, Purportedly Omnipotent, and
“At Risk,” 14 Widener L. Rev. 427 (2009) .............................................................................32
Evan S. Benn, Weston Family Faces Frustration of Court Fight After Grief of Terror
Bombing, Miami Herald, Aug. 22, 2013, available at
http://www.miamiherald.com/2013/08/22/3580282/weston-family-facesfrustration.html.........................................................................................................................25
-viii-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 10 of 52
PAGE(S)
Ronen Bergman, The Secret War With Iran: The 30-Year Clandestine Struggle Against
The World’s Most Dangerous Power (Free Press 2008). ..........................................................4
Yohan Jeremy Bob, Does Israel Have a Legal Right to Block Testimony Against the Bank
of China?, The Jerusalem Post, Nov. 18, 2013, at available at
http://www.jpost.com/Diplomacy-and-Politics/Does-Israel-have-a-legal-right-toblock-testimony-against-the-Bank-of-China-332061 .................................................. 19, 28-29
Tova Dvorin, Shurat HaDin: Government Abandoning Terror Victims, Israel Nat’l News,
Nov. 17, 2013, available at http://www.israelnationalnews.com/News/News.aspx
/174102 ..............................................................................................................................18, 19
Josef Federman, Israeli Leader Faces Test in US Case Accusing Bank of China of
Facilitating Militant Funding, Associated Press, Nov. 12, 2013, available at
http://ca.news.yahoo.com/israeli-leader-faces-test-us-case-accusing-bank070143813.html .......................................................................................................................25
Amos Harel & Rutie Zuta, The Chinese Connection: A Jewish-American Family’s Quest
to Find Those Responsible for Their Son’s Death, Haaretz, June 14, 2013, available
at http://www.haaretz.com/weekend/week-s-end/1.529757 ..............................................19, 25
Charles Levinson, U.S. Court Case Tests Israeli Resolve, Wall St. J., June 21, 2013,
available at
http://online.wsj.com/news/articles/SB10001424127887324577904578559531016718
160............................................................................................................................................25
John Reed, Israeli Prime Minister Netanyahu Gets Flak for Yielding to China, Fin.
Times, July 15, 2013, available at http://www.ft.com/cms/s/0/c99b9938-ed56-11e28d7c-00144feabdc0.html .....................................................................................................8, 18
Karl Vick, Netanyahu Accused of Favoring China Over Plaintiffs in U.S. Terrorism
Case, Time, Dec. 17, 2013, available at http://world.time.com/2013/12/17/netanyahuaccused-of-favoring-china-over-plaintiffs-in-u-s-terrorism-case ..............................................5
-ix-
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 11 of 52
Intervenor-plaintiffs in this consolidated miscellaneous proceeding (the “Intervenors”
and, together with the plaintiffs, “Plaintiffs”), respectfully submit this memorandum in
opposition to the motion of non-party State of Israel (“Israel” or “Movant”), filed on November
15, 2013, to quash the deposition subpoena issued and served to Mr. Uzi Shaya on September 18,
2013.
PRELIMINARY STATEMENT
This litigation arises from several terrorist attacks in Israel which killed and injured
multiple U.S. and Israeli Citizens. The core allegation is that the defendant Bank of China,
Limited (“BOC”) knowingly allowed and facilitated transfers of funds on behalf of the
Palestinian Islamic Jihad (“PIJ”) and Hamas, the terrorist organizations responsible for these
attacks, and that BOC was negligent in failing to employ proper safeguards to prevent its wire
transfer services from being used for such illicit means. See Wultz v. Islamic Rep. of Iran, 755 F.
Supp. 2d 1 (D.D.C. 2010), reconsidered in part, 762 F. Supp. 2d 18 (D.D.C. 2011). The claims
are proceeding in a number of interrelated cases in New York state and federal court (the
“Underlying Litigation”).1
The genesis of the Underlying Litigation was information provided by the Israeli
government relating to the BOC transfers, including account numbers and the names associated
with those accounts, as well as dates of fund transfers and amounts of money moved. This
1
These cases include: Wultz v. Bank of China, No. 11-cv-1266 (SAS) (S.D.N.Y.);
Moriah v. Bank of China 12-cv-1594 (S.D.N.Y.) (SAS); Elmaliach v. Bank of China, Index No.
102026/2009 (N.Y. Sup. Ct. N.Y. Cty.); Zamalloa v. Bank of China, Index No. 101244/2010
(N.Y. Sup. Ct. N.Y. Cty.); Rot v. Bank of China, Index No. 157475/2012 (N.Y. Sup. Ct. N.Y.
Cty.); Viflic v. Bank of China, Index No. 651294/2013 (N.Y. Sup. Ct. N.Y. Cty.). The Wultz case
was commenced in this Court before Chief Judge Lamberth as a claim against both BOC and
Iran, but the claims against BOC were severed and transferred to the Southern District of New
York.
1
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 12 of 52
information was provided by Israeli government officials to Ms. Nitsana Darshan-Leitner, an
Israeli attorney who is well-known both in Israel and internationally for her representation of
victims of terrorist attacks.
Ms. Darshan-Leitner, together with qualified U.S. counsel, presently represents all the
plaintiffs in these actions, other than the plaintiffs in Wultz v. Bank of China, No. 11-cv-1266
(SAS) (S.D.N.Y) whom she formerly represented at the time that case was filed.
This information demonstrated that beginning in 2003, BOC provided extensive banking
services to agents of Hamas and the PIJ, and thus knowingly enabled and facilitated the transfer
of large sums of money to the Hamas terrorist leadership in Israel, the West Bank and the Gaza
Strip, money that was used for planning, preparing for and executing terrorist attacks.
The Israeli Government provided this information with the knowledge, hope, and
expectation that it would be used by qualified counsel, on behalf of victims of terrorist attacks, to
initiate civil proceedings against BOC before U.S. courts.
Discussions between Ms. Darshan-Leitner and agents of the Israeli government
concerning bringing civil litigation against the BOC began in approximately 2005. There were
numerous meetings before the Israeli government granted permission and authorized its agents to
assist with the civil actions. After several attempts at trying to convince the government of China
and the BOC to close the terrorist accounts and to shut down this Hamas and PIJ funding
pipeline proved unsuccessful, the Israeli government decided to utilize the U.S. courts to
accomplish its objective. Encouraging and facilitating such civil proceedings became a
significant part of Israel’s policy of fighting terrorism by targeting terrorist financing networks,
including the specific BOC accounts used to fund the PIJ and Hamas.
The information provided to Ms. Darshan-Leitner by the Israeli government was the
critical link to substantiate Plaintiffs’ claims against BOC, and was at the time otherwise
2
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 13 of 52
completely unavailable to any of the parties or their counsel in the Underlying Litigation. It was
subsequently set forth in numerous publicly-filed pleadings, and is summarized in Intervenors’
interrogatory responses, dated October 21, 2013, as follows:
Since 2003, Nitsana Darshan-Leitner (hereinafter “Leitner”), Israeli counsel to the
Plaintiffs, has attended between eighty to one-hundred meetings with Uzi Shaya
and other employees of the Office of the Prime Minister of the State of Israel
concerning the Bank of China’s provision of financial services to terrorist
organizations.
In the past two years, Leitner has met on several occasions with an attorney for
the government of the State of Israel, employed by the Office of the Prime
Minister of the State of Israel, to discuss coordinating the deposition testimony of
Mr. Shaya. The purpose of these meetings was not to discuss the substance of Mr.
Shaya’ or other agents’ testimony . . . Rather, the purpose and scope of those
meetings was limited to discussing the actual conditions and circumstances
surrounding Mr. Shaya’s anticipated appearance at a deposition.
In June 2013, Leitner met with officials of the Ministry of Justice of the State of
Israel and the Office of the Prime Minister of the State of Israel to discuss this
litigation and Mr. Shaya’s anticipated testimony. That meeting focused on the
assurances that Leitner had received from the Israeli government concerning Mr.
Shaya’s and other agents’ testimony against the Bank of China in this litigation
and the provision of evidence by Israel to establish liability. Also discussed, were
the possible ways that Israel could solve the dilemma of allowing Israeli agents
and former agents to testify in the Bank of China proceedings, while trying to
withstand the massive diplomatic pressure being asserted by the Chinese
government on Israel to prohibit the aforementioned testimony.
Moriah Pls.’ Objections and Answers to Bank of China Limited’s Second Set of Interrogs.,
attached in full as Ex. T.
BACKGROUND AND STATEMENT OF THE CASE
Faced with unprecedented waves of suicide bombings and terrorist attacks being
perpetrated by the Palestinian and Islamic terrorist organizations in the course of the Second
3
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 14 of 52
Intifada starting in 2000, the Israeli government initiated an official policy of vigorously acting
to track, obstruct, and terminate the numerous paths and methods that the terrorist organizations,
which targeted Israeli and Jewish targets worldwide, used to finance their criminal operations.
According to the historian and author Dr. Ronen Bergman, the Counter-Terrorism Division in
the Israeli Prime Minister’s office established a special unit charged with tracking and
obstructing the terrorists’ financial operations. According to Bergman, this unit was called in
Hebrew Tziltzal, (Hebrew for “Harpoon”).2 Harpoon was an official unit within Israel’s CounterTerrorism Bureau. After numerous discussions with Ms. Darshan-Leitner, the agents of the
Harpoon unit recognized that civil lawsuits litigated in foreign court systems against banking and
financial institutions could serve as a powerful means of deterring and obstructing terrorist
financing and deterring banks from involvement with the terrorist organizations. See Decl. of
Roy Cochavi (“Cochavi Decl.”), attached hereto as Ex. V, ¶¶ 2-3, 9. These suits could also
impose a powerful financial deterrent on scofflaw banks engaged in transferring funds illegally,
and would provide a measure of justice and compensation for the innocent victims of terrorism.
Harpoon agents understood that such lawsuits, and the potential financial liability they could
impose, extended their operational reach and were effective in compelling banks, such as BOC,
to close existing terrorist bank accounts. Id. at ¶ 10. Ms. Darshan-Leitner worked closely with
the Harpoon agents on several matters involving terrorist financing and the struggle to obstruct
the movement of funds internationally. Id.
Ms. Darshan-Leitner had received assurances that Harpoon agents would provide the
evidence required for the successful handling of claims of this kind, including the relevant
account numbers, particulars pertaining to the bank transfers via BOC, and the testimony of
2
Ronen Bergman, The Secret War With Iran: The 30-Year Clandestine Struggle Against
The World’s Most Dangerous Power (Free Press 2008).
4
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 15 of 52
Israeli agents to substantiate the facts that justify the imposition of liability on the BOC. Id. at ¶¶
12-20; see also Karl Vick, Netanyahu Accused of Favoring China Over Plaintiffs in U.S.
Terrorism Case, Time, Dec. 17, 2013, available at http://world.time.com/2013/12/17/netanyahuaccused-of-favoring-china-over-plaintiffs-in-u-s-terrorism-case, attached hereto as Ex. U.
Ms. Darshan-Leitner informed the Harpoon agents that legal proceedings against the BOC were
likely to involve considerable financial costs and extensive effort to overcome the complex
problems which were expected to emerge in the course of the handling of multiple lawsuits over
an extended period of many years in a number of judicial forums. Cochavi Decl., Ex. V at ¶ 15.
Also at play was and considerable emotional investment by the individual plaintiffs, the innocent
victims of the underlying terrorist attacks. Ms. Darshan-Leitner informed the Harpoon agents
that she and her co-counsel colleagues could not afford to embark on a costly, complex, and
protracted legal proceeding against the BOC, and did not wish to create false expectations on the
part of the plaintiffs for the successful prosecution of the claims, if ultimately they were
compelled to withdraw the claims or lose them by reason of the lack of admissible evidence
required to establish the liability of the BOC. Id. Ms. Darshan-Leitner made it quite clear to the
Israeli government that in the event of their being forced to withdraw the claims, or even in the
event of losing the suits due to lack of evidence, there could be significant consequences for the
plaintiffs and their counsel. Id.
Ms. Darshan-Leitner made clear to the Israeli government that providing plaintiffs’
attorneys with the evidence that they required was a condition precedent for filing suit against
BOC and that this requirement was insisted upon by both Ms. Darshan-Leitner and her cocounsel, and by the would-be plaintiffs, in view of the fact that these plaintiffs were victims of
terrorism or families of victims, and as such had already undergone significant suffering. She
5
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 16 of 52
warned the Israeli government that there was no justification for pointlessly aggravating their
wounds and fostering vain hopes which could not be realized. Id.
Harpoon agents promised to confer on the matter with their superiors and to give a
substantive response following extensive examination of all aspects of the matter by the relevant
governmental bodies. The Harpoon agents subsequently returned to Ms. Darshan-Leitner and
informed her that following consideration of the matter by the competent authorities in the Prime
Minister’s office, they had concluded that plaintiffs’ conditions were acceptable. Id. at ¶ 17. At
the first stage the Israeli Government agreed to provide particulars concerning the relevant bank
accounts and certain bank transactions. Id. at ¶ 20. It would later provide the testimony of an
intelligence agent, Uzi Shaya, to substantiate the alleged facts. Id. at ¶ 22-23.
In reliance on, and exclusively by reason of this official undertaking, Ms. DarshanLeitner and her U.S. co-counsel, commenced the filing of the suits against BOC in various
appropriate jurisdictions on behalf of her numerous terrorist victim clients. Id. at ¶ 20. Suits were
filed in the names of dozens of victims, families of victims and relatives of victims, all of whom
had been harmed in attacks perpetrated by Hamas and the PIJ. Id.
Israel has been an active participant and a facilitator in the preparation of the Underlying
Litigation from the beginning. Indeed, Israel instigated and encouraged this litigation, and
without the specific information that Israel provided to Ms. Darshan-Leitner, including the
account numbers for the accounts at issue, the Underlying Litigation could not have and never
would have started. Moreover, had Ms. Darshan-Leitner not been promised the full support and
continuous cooperation of the Israeli government that she absolutely insisted upon before
commencing the Underlying Litigation, the lawsuit would not have been brought. As such, at
every stage of these civil actions, over a period of more than six years including pre-filing
6
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 17 of 52
investigations, Ms. Darshan-Leitner met with and updated agents of the Israeli government
concerning their development and progress.
After the Wultz and Elmaliach cases had been commenced, and the defendant BOC
moved to dismiss, Israel authorized Shlomo Matalon, a former Department Head in the Office of
the Prime Minister, to provide a declaration substantiating the claims asserted in this case. Id. at
¶ 20. With the full advance knowledge of the Israeli government, the Matalon declaration was
prepared and executed and publicly filed in opposition to BOC’s motion to dismiss. See Decl. of
Shlomo Matalon, May 16, 2009 (“Matalon Decl. of 2009”), attached hereto as Ex. B. Thus,
Israel has been an active participant in this litigation from before its inception, and has provided
crucial information that has brought the case to its present phase.
The Underlying Litigation has now arrived at the point where facts conveyed sotto voce
or in a declaration will not suffice, and it is necessary to substantiate the factual allegations by
the live testimony of a witness with first-hand knowledge. That witness, upon information and
belief, is Uzi Shaya.
Ms. Darshan-Leitner has met with attorneys from Israel’s National Security Council and
negotiated the terms and safeguards required for Mr. Shaya to be enabled to appear for a
deposition on behalf of the plaintiffs in these actions. Id. at ¶ 22-24. Following the conclusion of
an agreement with the National Security Council, Mr. Shaya himself sent a letter to counsel for
the parties to the Underlying Litigation on March 20, 2013, outlining the terms and safeguards
that he required in order to testify. See Letter from Uzi Shaya, Mar. 20, 2013 (the “1st Shaya
Letter”), attached hereto as Ex. E. Essentially, Mr. Shaya’s stated position is that if he is
permitted to appear and testify he would do so under the active supervision of the Southern
District of New York under conditions ensuring that the scope of the deposition does not stray
beyond what was agreed upon between Ms. Darshan-Leitner and the attorneys of the National
7
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 18 of 52
Security Council See id.; Order of Shira A. Scheindlin, Nov. 15, 2013, Wultz v. Bank of China,
No. 1:11-cv-01266 (SAS) (S.D.N.Y.), Dkt. No. 394 (“Scheindlin Order”) (setting terms and
conditions for Mr. Shaya’s testimony).
Thus, until very recently, Ms. Darshan-Leitner’s interlocutors in the Israeli government
agreed that Mr. Shaya could testify, albeit with certain restrictions. Unfortunately, in recent
months, elements within the Israeli government have had a change of heart, apparently due to
extreme diplomatic pressure from the Chinese government that this case against BOC—which is
owned by the Chinese government—be made to “go away.” See John Reed, Israeli Prime
Minister Netanyahu Gets Flak for Yielding to China, Fin. Times, July 15, 2013, available at
http://www.ft.com/cms/s/0/c99b9938-ed56-11e2-8d7c-00144feabdc0.html, attached hereto as
Ex. I. Now, at the eleventh hour, the information that Mr. Shaya was slated to testify about has
been deemed a matter of national security—notwithstanding that this same information was
already revealed to Ms. Darshan-Leitner, publicly disclosed in the Matalon Declaration, see
Ex. B, has received wide-spread media coverage internationally since the commencement of the
Underlying Litigation, and relates to wire transfers that took place between five and ten years
ago, accounts that have since been closed, and an “operation” that has long since ended.
Concerned that Mr. Shaya was being pressured not to testify, on September 18, 2013
counsel for the Wultz plaintiffs served him with a subpoena when he was traveling in
Washington, D.C. See State of Israel’s Mot. to Quash, Dkt. No. 1 (hereinafter, “Mov. Br.”),
Ex. A. Upon agreement between the Wultz’ and BOC’s counsel and Judge Scheindlin, the
deposition location was moved to New York, to be conducted in Judge Scheindlin’s courtroom,
with Judge Scheindlin herself presiding. See Scheindlin Order, supra.
Upon information and belief Mr. Shaya still personally agrees to testify at the deposition.
Tellingly, he has not moved to quash the subpoena, and indeed has not raised any formal
8
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 19 of 52
objection to appearing in any forum. The State of Israel has, however, filed a motion to quash,
notwithstanding that it is not a party to this case, is not affected by the subpoena, and has not
moved to intervene in this proceeding. This Court subsequently stayed the deposition, pending
the disposition of the State of Israel’s motion. See Dkt. No. 5.
ARGUMENT
I.
ISRAEL’S MOTION TO QUASH SHOULD BE TRANSFERRED
TO THE SOUTHERN DISTRICT OF NEW YORK
Under the new Federal Rule of Civil Procedure 45(f), which took effect on December 1,
2013, this Court should transfer Israel’s motion to quash to the Southern District of New York.
The new Rule 45(f) provides:
Transferring a Subpoena-Related Motion. When the court where compliance is
required did not issue the subpoena, it may transfer a motion under this rule to the
issuing court if the person subject to the subpoena consents or if the court finds
exceptional circumstances.
Fed. R. Civ. P. 45(f); see also Fed. R. Civ. P. 45(f) advisory comm. notes (2013 Amend.) (“Rule
45(f) provides authority for the court where subpoena-related motions are made to transfer the
motion to the court where the action is pending”).
Judge Scheindlin in the Southern District of New York has presided over and closely
supervised the Wultz and Moriah cases, which are consolidated for discovery purposes, for years.
She has written 15 opinions in this case and is deeply involved with all aspects of discovery. For
the proposed deposition of Mr. Shaya, as planned prior to this Court’s stay, Judge Scheindlin was
to provide her courtroom and her personal supervision, as well as carefully delineated parameters
including who may access the proceeding and how long each party would be entitled to pose
questions. See Scheindlin Order, supra. These measures ensure that the questioning does not
stray into inappropriate matters. For these reasons and those stated in Intervenors’ separately
9
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 20 of 52
filed motion dated December 2, 2013, seeking transfer of this proceeding to the Southern District
of New York, see Dkt. Nos. 13, 16, the Court should transfer Israel’s motion to quash for
disposition by Judge Scheindlin.
II.
ISRAEL LACKS STANDING TO QUASH THE SUBPOENA AS IT
IS NOT A PARTY AND HAS NOT INTERVENED
A party that objects to a subpoena but is not itself a party to the litigation or to the
subpoena must move to intervene if it wishes to quash the subpoena. Salem Vegas, L.P. v.
Guanci, No. 2:12-cv-01892-GMN, 2013 WL 5493126, at *1 (D. Nev. Sept. 30, 2013) (holding
that a former party could not move to quash a subpoena that it was not subject to); In re Yassai,
225 B.R. 478, 480-81 (Bankr. C.D. Cal. 1998) (“If the drafters of the FRCP had intended FRCP
45(c)(3)(A) to apply to parties who are not directly subject to the subpoena, they would have so
stated.”) (tentatively distinguishing between motions brought pursuant to Rule 45(c)(3)(A) and
Rule 45(c)(3)(B)3); In re Rhodes Cos., LLC, 475 B.R. 733, 739-40 (D. Nev. 2012) (same)
(holding that even a party cannot move to quash a subpoena under Rule 45(c)(3)(A) where the
party is not “subject to subpoena”); Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979) (“The
moving party has not carried its burden. First, one of the persons subpoenaed, Grainger, is not a
party to the interference proceeding and has not joined in the request for a stay. Braddick and
Lindsey do not have standing to raise the issue of Grainger’s amenability to the compulsory
process of the district court since they are not in possession of the materials subpoenaed and have
3
Plaintiffs disagree with the scope of the Yassai Court’s distinction between motions
brought pursuant to Rule 45(c)(3)(A) and Rule 45(c)(3)(B) and believe that a nonparty movant
that seeks to protect the interests of another lacks standing under either statute. But further
discussion of that issue is unnecessary here, given that it is clear that Israel has moved pursuant
only to Rule 45(c)(3)(A). While the motion itself refers to simply “Federal Rule of Civil
Procedure 45(c)(3),” (Mov. Br. at 1), its memorandum in support has numerous citations to Rule
45(c)(3)(A) and no citations to Rule 45(c)(3)(B). (See Mov. Br. at 15 (“The language of Rule 45
is mandatory….”), 21-23).
10
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 21 of 52
not alleged any personal right or privilege with respect to the materials subpoenaed”) (emphasis
added); see also SEC. v. Tucker, 130 F.R.D. 461, 462 (S.D. Fla. 1990) (reaching the same result
under Rule 26(c)). Israel lacks standing to move to quash the subpoena and its attempt to do so
must be denied.
Israel claims support for the contrary position in primary reliance on an unpublished
decision from the Northern District of New York, Zinter Handling, Inc. v. GE Co., No. 04-cv500, 2006 WL 3359317, at *2 (N.D.N.Y. Nov. 16, 2006), which stated, without any analysis,
that a nonparty has standing to quash a subpoena whenever that nonparty has an “interest in the
privacy and confidentiality” of the documents requested to be produced. Zinter Handling, in turn,
relies on just one case: another unreported decision, Reserve Solutions, Inc. v. Vernaglia, No. 05
CIV. 8622 VM RLE, 2006 WL 1788299, at *2 (S.D.N.Y. June 26, 2006). Moreover, Zinter
Handling badly misapplied Reserve Solutions. The latter case held that a party has standing to
move to quash a subpoena when it has a “personal privacy right” in the records being sought. It
should be obvious that a party may have standing to quash where a nonparty would not. Yet
Zinter Handling applied Reserve Solutions as if unaware of the fact that the cases were
dramatically different.
Further, even if Zinter Holder were correct—it is not, as Intervenors’ cases cited supra
make clear—a rule that permits a nonparty to object to the surrender of documents that it has an
interest in cannot be extended to permit a nonparty to prevent another nonparty from testifying
entirely about his personal knowledge.
For these reasons and those stated in Intervenors’ separately filed motion dated December
2, 2013, seeking to strike Israel’s motion to quash for lack of standing since it has not intervened,
see Dkt. Nos. 13, 16, the Court should deny Israel’s motion to quash.
11
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 22 of 52
III.
EVEN IF ISRAEL HAS STANDING TO RAISE OBJECTIONS ON
BEHALF OF MR. SHAYA, ITS MOTION TO QUASH WAS NOT
TIMELY FILED AND SHOULD BE REJECTED
Rule 45(c)(2) provides that an “objection [to a subpoena] must be served before the
earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed. R. Civ.
P. 45(c)(2). Rule 45(c)(3), however, applies, on its terms, only upon “timely motion.” Fed. R.
Civ. P. 45(c)(3)(A). The Shaya subpoena was served on September 18, 2013 and required Mr.
Shaya’s appearance on November 25, 2013. (Mov. Br., Ex. A.) Accordingly, Mr. Shaya had 14
days—until October 2, 2013—to object to the subpoena. The story of Mr. Shaya’s being served
with a subpoena appeared prominently in the Israeli media and Israel was fully aware that it had
occurred. As such, even if Israel had authority to stand in Mr. Shaya’s shoes and raise an
objection on his behalf (a doubtful proposition), it had until October 2 to do so. But Israel did not
file or serve the instant motion to quash until November 15, 2013—44 days late. Its motion must
be denied as untimely.
IV.
MOVANT HAS FAILED TO MEET ITS BURDEN OF SHOWING
THAT SOVEREIGN IMMUNITY PRECLUDES MR. SHAYA’S
DEPOSITION
Movant contends that the subpoena must be quashed because Mr. Shaya has testimonial
immunity as a former foreign government official. See Mov. Br. at 6. This argument is
misplaced. The question here is whether the sovereignty of Israel is somehow violated if a
federal court permits the voluntary deposition of a former official concerning matters of public
record. None of Israel’s cases address that question. Movant glosses over key facts that make
clear that this case does not concern Israel’s sovereignty, and implicates neither statutory nor
common law sovereign immunity doctrine. The immunity shield is also inappropriate here
because Israel has affirmatively directed the information sought through Mr. Shaya’s deposition
12
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 23 of 52
into publicly-filed pleadings in U.S. courts for the purpose of supporting this litigation, waiving
any claim to immunity that it might otherwise have had.
A.
The Voluntary Deposition of a Former Official on Matters of Public
Record Is Not Entitled to Sovereign Immunity Protection
Movant’s sovereign immunity is not implicated here because allowing Mr. Shaya to
testify voluntarily will require Movant neither to take any action, nor pay any money. Claims of
sovereign immunity based on the conduct of former foreign officials like Mr. Shaya are
governed exclusively by common law, and are narrower in scope than status-based immunities.
See Samantar v. Yousuf, 560 U.S. 305, 320, 325 (2010). Conduct-based immunity extends to
state officials and applies “with respect to acts performed in [their] official capacity if the effect
of exercising jurisdiction would be to enforce a rule of law against the state.” Id. at 322 (quoting
Restatement (Second) of Foreign Relations Law § 66 (1965) (internal punctuation omitted). The
Restatement clarifies that claims against officials enforce a rule of law against the state when
enforcing the judgment on such claims would compel or enjoin state action or cause the state to
pay damages. See id. § 66 cmt. b, illus. 2; accord Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 687 (1949).
Israel is not a party to this litigation. See Letter from John Bellinger, Attorney for
Movant, to Robert Tolchin, Attorney for the Moriah plaintiffs (Dec. 4, 2013), Ex. A. Israel is not
being asked by this Court or by the Southern District of New York to do anything. Israel offers
no authority for the proposition that its sovereign immunity is somehow challenged by a
deposition subpoena to a willing foreign subject (a private party not presently employed by the
State) to appear for a deposition. Mr. Shaya is not a party to this litigation, and is no longer an
employee or officer of Israel. Nothing about his voluntary deposition touches on Israel’s
sovereignty.
13
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 24 of 52
The Plaintiffs seek to depose Mr. Shaya regarding facts in the public domain, so the
subpoena for his deposition cannot be seen as a proxy for eliciting testimony from Israel or
causing Israel to relinquish vital information that belongs to it. Courts allow suit against
government officials to proceed as long as “[t]he judgment sought will not require action by the
sovereign or disturb the sovereign’s property.” Larson, 337 U.S. at 687 (1949) (noting that the
question of immunity turns on whether a suit seeking either damages or specific relief from an
official will cause the state to pay those damages or compel the state to provide that specific
relief). Information in the public domain is not as a rule property of a state. See, e.g., United
States v. Jones, 677 F. Supp. 238, 241 nn.3-4 (S.D.N.Y. 1988). The subject of Mr. Shaya’s
deposition was duly made public by Movant through its Harpoon agents and the authorized
declaration its former officer, Shlomo Matalon. See Matalon Decl. of 2009, Ex. B ¶ 8. Already
having allowed this information to become public, Israel has relinquished its legal interest in it.
The inappropriateness of immunity in this context is confirmed by the fact that there has
been no suggestion of immunity (“SOI”) from the State Department. While the view of the State
Department regarding foreign official immunity would not be dispositive either way, see Yousuf
v. Samantar, 699 F.3d 763, 773 (4th Cir. 2012), petition for cert. filed, 81 U.S.L.W. 3503 (U.S.
Mar. 4, 2013) (No. 12-1078), the lack of an SOI at this point in the proceeding is consistent with
Intervenors’ position that Israel’s sovereignty is not implicated by the proposed deposition of
Mr. Shaya.
Movant has pointed to no cases extending the doctrine of foreign sovereign immunity to
quash the voluntary deposition of a former official in the absence of an SOI. All cases cited by
Movant in support of its position are readily distinguishable. In Giraldo v. Drummond Co., 808
F. Supp. 2d 247 (D.D.C. 2011), aff’d, 493 F. App’x 106 (D.C. Cir. 2012), cert. denied, 133 S. Ct.
1637 (2013), a case that Movant calls “strikingly similar”, see Mov. Br. at 6, this Court
14
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 25 of 52
disallowed the compelled testimony of the former President of Colombia, Alvaro Uribe,
regarding alleged war crimes that he may have known about or even sanctioned while in office.
808 F. Supp. 2d at 248. Unlike here, the information sought was not in the public domain, Uribe
vigorously challenged the subpoena, and he could have faced personal civil exposure in a
subsequent action if the court determined that he was not immune from suit. Id. at 248-49. Also,
in that matter the State Department had issued an SOI taking the position that Uribe was
immune. See id. at 249-50. And even in those circumstances, the Court drew the contours of the
immunity carefully, suggesting that Uribe could be deposed regarding “information unrelated to
acts taken or obtained in [his] official capacity.” Id. at 251. This reticence to apply sovereign
immunity too liberally is particularly appropriate here because the mere provision of testimony is
materially different from the risk of a rule of law being enforced against a sovereign.
Movant’s other cases present circumstances likewise distinct from the facts at bar. See
Richardson v. Att’y Gen. of British V.I., No. CV 2008-144, 2013 WL 4494975 (D.V.I. Aug. 20,
2013) (suit against current official, who was a named defendant); Weiming Chen v. Ying-jeou
Ma, No. 12 CIV. 5232 NRB, 2013 WL 4437607 (S.D.N.Y. Aug. 19, 2013) (same) , reconsidered
in part, 762 F. Supp. 2d 18 (D.D.C. 2011); Smith v. Ghana Com’l Bank, Ltd., No. CIV. 10-4655
DWF/JJK, 2012 WL 2930462 (D. Minn. June 18, 2012), report & recommendation adopted, No.
CIV. 10-4655 DWF/JJK, 2012 WL 2923543 (D. Minn. July 18, 2012), aff’d, No. 12-2795 (8th
Cir. Dec. 7, 2012) (same); Fotso v. Rep. of Cameroon, No. 6:12 CV 1415-TC, 2013 WL
3006338 (D. Or. June 11, 2013) (same); Rosenberg v. Lashkar-e-Taiba, No. 10-CV-5381 DLI
CLP, 2013 WL 5502851 (E.D.N.Y. Sept. 30, 2013) (finding in that context that the State
Department’s SOI was dispositive and surrendering jurisdiction); Matar v. Dichter, 563 F.3d 9,
15 (2d Cir. 2009) (same). That Movant fails to cite a case on point is unsurprising, because the
15
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 26 of 52
facts and circumstances surrounding the voluntary deposition of Mr. Shaya simply do not
implicate Movant’s sovereignty.
This Court should exercise its discretion and find no immunity because Mr. Shaya is
willing to provide testimony, and Israel’s sovereign interests are not involved in any way.
Movant contends that a presumption of testimonial immunity applies even in the absence of an
SOI. See Mov. Br. at 13. The Supreme Court expressly rejected this approach and endorsed the
long-standing common law rule that, “in the absence of recognition of the immunity by the
Department of State, a district court had authority to decide for itself whether all the requisites
for such immunity exist[].” Samantar, 560 U.S. 305 at 311. In support of its position, Movant
posits that “in the absence of contrary guidance from the Executive branch, a district court may
properly dismiss a suit against a foreign official if the suit challenges acts taken exercising the
powers of the official’s office.” See Mov. Br. at 13 (quoting the brief for the United States as
Amicus Curiae Supporting Appellee in Giraldo v. Drummond Co., 493 F. App’x 106 (D.C. Cir.
2012), cert. denied, 133 S. Ct. 1637 (2013) (emphasis added by Movant). But even this statement
supports the position that immunity is not appropriate here, because nothing in the subpoena for
Mr. Shaya’s deposition—nor indeed in the Underlying Litigation—“challenges acts” of either
Mr. Shaya or the Israeli government. Israel’s sovereignty is simply not implicated on these facts.
B.
Movant Waived Any Claim to Immunity by Affirmatively Disclosing
Information to Pursue its Goals Through United States Courts
Sovereign immunity does not apply in case, and Movant has waived any claim that it
does by affirmatively disclosing the information on which Mr. Shaya would be deposed in order
to pursue its fight against terrorist financing through the U.S. courts. Movant intentionally
benefitted from the commencement of the Underlying Litigation as a means to target specific
16
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 27 of 52
BOC accounts used to fund the PIJ and Hamas. Indeed, the Hamas and PIJ bank accountants
were only closed after plaintiffs filed the instant civil actions against BOC.
Waiver applies where a foreign state has taken an act that objectively can be interpreted
as exhibiting intent to waive immunity, or that forfeits its right to immunity, irrespective of
whether it has intended to do so. See Smith v. Socialist People’s Libyan Arab Jamahiriya, 101
F.3d 239, 243 (2d Cir. 1996) (“Congress primarily expected courts to hold a foreign state to an
implied waiver of sovereign immunity by the state’s actions in relation to the conduct of
litigation”).4 This Court has recognized that waiver may be appropriate where based on acts by
the foreign state related to the “conduct of litigation.” Odhiambo v. Rep. of Kenya, 930 F. Supp.
2d 17, 24 (D.D.C. 2013) (recognizing implied waiver per Smith, but declining to find waiver on
the facts) (citing Smith, 101 F.3d at 244). Thus, a sovereign waives its immunity when it enlists
the involvement of courts in the United States in matters related to the litigation in which the
state has asserted immunity. See Siderman de Blake v. Rep. of Arg., 965 F.2d 699, 721 (9th Cir.
1992).
In Siderman, a case cited favorably in this Circuit, e.g. Agudas Chasidei Chabad of U.S.
v. Russian Fed., 528 F.3d 934, 941-42 (D.C. Cir. 2008), Argentina had requested the assistance
of a state court in order to serve process on the plaintiff in connection with criminal proceedings
against the plaintiff pending in Argentina. Siderman de Blake, 965 F.2d at 722. The court
concluded that this evidenced a waiver of immunity with respect to Siderman’s claims of
4
Smith was decided under the FSIA. Prior to the Supreme Court’s 2010 decision in
Samantar, most courts analyzed sovereign immunity claims under the Foreign Sovereign
Immunities Act (“FSIA”), which provides for waiver where “the foreign state has waived its
immunity either explicitly or by implication . . . .” 28 U.S.C. § 1605(a)(1). While FSIA cases
may be instructive, Plaintiffs are not limited to the narrowly applied categories of waiver
traditionally recognized under the FSIA, see Samantar, 560 U.S at 325, nor has Movant argued
that they are.
17
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 28 of 52
persecution, reasoning that the waiver was implied from Argentina’s use of U.S. courts in
connection with the conduct for which Siderman sought redress. Id.; see also Liberian E. Timber
Corp. v. Gov’t of Rep. of Liberia, 650 F. Supp. 73, 76 (S.D.N.Y. 1986) (holding that Liberia
waived its claim of immunity because it “clearly contemplated the involvement of the courts of
any of the Contracting States, including the United States” when it signed onto the Convention
on the Settlement of Investment Disputes Between States and Nationals of Other States), aff’d,
854 F.2d 1314 (2d Cir. 1987).
Movant waived any immunity from process of U.S. courts in connection with the
Underlying Litigation when it affirmatively sought to use the Plaintiffs as proxies in an effort to
shut down BOC accounts involved in financing terrorist attacks within its borders. This was a
critical part of Movant’s national security strategy. See Ex. V (Cochavi Decl.), ¶¶ 6, 10; In fact, it
was the only option remaining to stop the flow of funds to terrorists through BOC. Direct talks
with the Chinese government, BOC’s owner, had failed to bring about the accounts’ closure. See
Ex. B (Matalon Decl. of 2009) ¶ 9. BOC has no presence in Israel against which Movant could
take action. The most direct and effective route to closing the terrorist-linked accounts was
through a civil suit in the U.S..
Movant effectively initiated the Underlying Litigation when it approached the victims of
several terror attacks and asked them to bring legal claims against BOC under U.S. anti-terrorism
laws. See Ex. V (Cochavi Decl.), ¶¶ 10-11. Movant made no secret of its aim to impede terrorist
financing by supporting civil actions in U.S. courts.5 It wanted the BOC accounts closed at all
costs.
5
See Tova Dvorin, Shurat HaDin: Government Abandoning Terror Victims, Israel Nat’l
News, Nov. 17, 2013, available at http://www.israelnationalnews.com/News/News.aspx/174102,
attached as Ex. H; John Reed, Israeli Prime Minister Netanyahu Gets Flak For Yielding to
China, Ex. I.
18
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 29 of 52
In filing lawsuits naming BOC as a defendant, Plaintiffs relied entirely on information
provided by Movant about the involvement of BOC accounts in funding PIJ and Hamas,
information which was not otherwise available. Id. at ¶ 11. As a result, before filing, Plaintiffs
had insisted on promises from Movant that it would provide evidentiary support as needed
throughout the case. The decision to provide those promises was made at the highest levels of the
Israeli government.6 Movant also initially agreed to provide plaintiffs with access to Mr. Shaya,
although it later reneged on this promise. Matalon Decl. of 2009, Ex. B. 7
By enlisting both American and Israeli plaintiffs to file this claim and further Movant’s
goals in fighting terrorism, and by providing material assistance to the Underlying Litigation,
Movant “not only envisioned United States court participation . . . but by its actions deliberately
implicated [United States courts by soliciting such participation].” Siderman de Blake, 965 F.2d
at 721-22. Movant received the benefit of its bargain shortly after the commencement of the
Underlying Litigation when the BOC accounts in question were closed.8 It should not be allowed
at this late date to go back on its promise and stop Mr. Shaya’s deposition from going forward.
6
See Tova Dvorin, Shurat HaDin: Government Abandoning Terror Victims, Ex. H; Karl
Vick, Netanyahu Accused of Favoring China Over Plaintiffs in U.S. Terrorism Case, Ex. U.
7
See also Yohan Jeremy Bob, Does Israel Have a Legal Right to Block Testimony
Against the Bank of China?, The Jerusalem Post, Nov. 18, 2013, at http://www.
jpost.com/Diplomacy-and-Politics/Does-Israel-have-a-legal-right-to-block-testimony-againstthe-Bank-of-China-332061, attached as Ex. J.
8
See Amos Harel & Rutie Zuta, The Chinese Connection: A Jewish-American Family’s
Quest to Find Those Responsible For Their Son’s Death, Haaretz, June 14, 2013, available at
http://www.haaretz.com/weekend/week-s-end/1.529757, attached as Ex. M (stating that accounts
were in use through 2008).
19
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 30 of 52
V.
THERE IS NO STATE SECRET PROTECTION APPLICABLE TO
MR. SHAYA’S DEPOSITION
No United States court has ever extended the state secrets privilege, in the name of
comity or otherwise, to protect the alleged state secrets of a foreign sovereign. The privilege has
only been invoked by the U.S. executive to safeguard domestic national security and has been
honored by the courts out of the principle of separation of powers, a duty courts do not owe to
foreign governments. Moreover, any state secrets privilege that might otherwise exist is nullified
when the information at issue is voluntarily publicized by the state, as has been done by Movant
in this case. Plaintiffs appreciate that governments require a degree of protection from disclosure
of secret information that is vital to anti-terrorism efforts, and agree that all responsible nations
should be able to fight terrorism without compromising their national security or the security of
individual officers. In this case, however, there is no risk of breaching these principles because
the substance of the information about which Mr. Shaya would testify is already in the public
record. Because the aim of the Shaya deposition is solely to verify public information, and
because doing so is indispensable to plaintiffs’ case, the motion to quash must be denied.
A.
The State Secrets Privilege Only Protects Secrets of the United States
The state secrets privilege is not implicated by the subpoena for Mr. Shaya’s deposition
because the privilege does not protect the secrets of foreign sovereigns. The state secrets
privilege is a common law evidentiary rule that may be invoked by the “United States . . . [in
order to] block discovery in a lawsuit of any information that, if disclosed, would adversely
affect national security.” Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983); see also Nat’l
Lawyers Guild v. Att’y Gen., 96 F.R.D. 390, 394-95 (S.D.N.Y. 1982) (“The state secrets
privilege . . . protects information not officially disclosed to the public concerning the national
defense or the international relations of the United States.”) (quoting 8 Charles Alan Wright &
20
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 31 of 52
Arthur R. Miller, Fed. Prac. & Proc. ¶ 2019 at 158 (1970)). The privilege should not be invoked
lightly. United States v. Reynolds, 345 U.S. 1, 7 (1953).
To extend the state secrets privilege to a foreign nation would be novel. See In re Grand
Jury Subpoena dated Aug. 9, 2000, 218 F. Supp. 2d 544, 560 (S.D.N.Y. 2002). Movant admits
that no U.S. court has allowed a foreign government to assert the state secrets privilege, see Mov.
Br. at 17, n.9, and Intervenors have found none. Indeed, nearly every case cited by Movant
involves an invocation of the privilege by the United States or one of its agencies. See Northrop
Corp. v. McDonnell Douglas Corp., 751 F.2d 395 (D.C. Cir. 1984) (Department of Defense); In
re United States, 872 F.2d 472 (D.C. Cir. 1989) (Attorney General); Reynolds, 345 U.S. 1 (U.S.
Air Force); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (President, Secretary of
Defense, and Director of the CIA); In re Sealed Case (Horn), 494 F.3d 139 (D.C. Cir. 2007)
(United States); Molerio v. FBI., 749 F.2d 815 (D.C. Cir. 1984) (same); Burnett v. Al Baraka Inv.
& Dev. Corp., 323 F. Supp. 2d 82 (D.D.C. 2004) (same); Bareford v. Gen. Dynamics Corp., 973
F.2d 1138 (5th Cir. 1992) (same).
Very good reasons support the general refusal of U.S. courts to recognize a state secrets
privilege for foreign governments. First, the purpose of the privilege is to protect U.S. national
security. See In re Sealed Case (Horn), 494 F.3d at 142 (disclosure must be “inimical to the
national security”). As in this case, disclosure of a purported “state secret” of a foreign
government would not be so generally inimical to U.S. national security as to justify a per se rule
imposing such an absolute privilege. Reynolds, 345 U.S. at 7. Second, the legal basis for the
privilege is rooted in separation of powers—something not implicated here. See In re Grand Jury
Subpoena, 218 F. Supp. 2d at 553; Compagnie Francaise d’Assurance Pour le Commerce
Exterieur v. Phillips Petrol. Co., 105 F.R.D. 16, 25 (S.D.N.Y. 1984) (rejecting assertion of the
state secrets privilege over information affecting international relations of France as outside the
21
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 32 of 52
privilege’s scope, and noting that the “state secrets privilege . . . should be narrowly construed to
permit the broadest possible discovery consistent with the purposes of the privilege . . . [which
is] premised on a concern that any release of confidential government information to a
coordinate and equal branch of government would offend the principle of separation of powers
and be detrimental to the public interest”).
In In re Grand Jury Subpoena, the Southern District of New York expressly rejected an
assertion of the privilege by a foreign government, noting that “the contours of the privilege for
state secrets are narrow, and have been so defined in accord with uniquely American concerns
for democracy, openness, and separation of powers.” 218 F. Supp. 2d at 560. As that Court
reasoned, it “makes little sense” to afford state secrets protection to foreign governments,
because there is no separation of powers concern between the United States judiciary and foreign
sovereigns. Id. Both the purpose and legal underpinnings of the state secrets privilege make clear
that it is not available to a foreign sovereign in U.S. courts.
Movant asserts that certain decisions of U.S. courts, while not finding that the privilege
applies to foreign sovereigns, have assumed that it does. Mov. Br. at 17, n.9. But these cases
provide Movant no help. For example, in Ghana Supply Commission v. New England Power Co.,
83 F.R.D. 586, 590 (D. Mass. 1979), the court did not even consider a claim of state secrets
privilege, but rather considered Ghana’s claim to executive privilege and concluded that the
government had “waived any privilege it might have otherwise had to prevent disclosure of
information” by instituting the lawsuit through the Ghana Supply Commission, which the Court
found to be an agent of the Ghanian government. Id. at 592, 594.9
9
Movant also cites Phillips Petroleum, in which the court in fact refused to extend the
privilege to the French government, 105 F.R.D. at 25, and Kessler v. Best, a case that predates by
fifty years the Supreme Court’s definitive establishment of the contours of the state secrets
22
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 33 of 52
Movant’s appeal to comity must also be rejected. It argues that In re Papandreou, 139
F.3d 247, 254 (D.C. Cir. 1998), and In re Grand Jury Subpoena, 218 F. Supp. 2d at 553
demonstrate that it is entitled to assert the state secrets privilege to the same extent as the U.S.
executive. See Mov. Br. at 16-17. This claim is unavailing because neither case cited actually
considered the question. In re Papandreou was decided on the basis of diplomatic immunity,
which the court observed “has special characteristics beyond those of ordinary privilege.” 139
F.3d at 251. The matter did not implicate claims of state secrets, and the court in any case was
willing to allow the depositions upon a showing of need. See id. at 250. In re Grand Jury
Subpoena is even less favorable to Movant’s claim. To the extent that case considered comity, it
did so in dicta in the context of a claim to executive privilege that it ultimately rejected. 218 F.
Supp. 2d at 552 (quoting In re Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997)). And as
noted above, the Grand Jury Subpoena court expressly rejected the notion that a foreign
sovereign can avail itself of the state secrets privilege, observing that no U.S. court has ever
expanded the privilege beyond the executive branch of the United States. Id. at 559-60. Movant
points to no court in which a foreign government has successfully asserted a state secrets
privilege, pursuant to comity principles or otherwise, and provides no reason why this Court
should be the first to do so.
B.
Any “State Secret Privilege” Was Lost When Movant Voluntarily
Disclosed to Plaintiffs the Very Information it Now Claims Is
Privileged
Apart from the fact that Movant holds no state secrets privilege to begin with, it waived
and destroyed any claim to such a privilege when it affirmatively disclosed the very information
that Plaintiffs seek to discover through Mr. Shaya’s deposition. Mr. Shaya has personal
privilege, and addressed a claim of “privilege[] by statute and by treaty”—neither of which are
relevant here. 121 F. 439, 439 (S.D.N.Y. 1903).
23
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 34 of 52
knowledge of those facts. The purpose of his deposition is not to discover additional evidence,
but merely to obtain his first-hand account of facts already in the record in order to overcome
potential hearsay challenges.
The Supreme Court has explained that “[o]nce the defendant learns the state secret . . .
the underlying basis for the privilege disappear[s] . . . . Thus, . . . the preservation of these
privileges is dependent upon nondisclosure of the privileged evidence. . . .” Jencks v. United
States, 353 U.S. 657, 675 (1957) (Burton, J., concurring); see also United States v. Am. Tel. &
Tel. Co., 86 F.R.D. 603, 628 (D.D.C. 1979). (“A government privilege is waived by the
Government’s voluntary disclosure of the materials which it protects . . . .”); accord Nat’l
Lawyers Guild, 96 F.R.D. at 402 (citing Roviaro v. United States, 353 U.S. 53, 60 (1957)). “With
the state secrets privilege, the determination of its secrecy is made as of the time of trial, not at
some time in the past. Hence, if the matter has been disclosed, it is not a ‘secret’ and there is no
privilege.” 26 Charles Alan Wright et al., Fed. Prac. & Proc. Evid. 3d § 5665 (2008 & Supp.
2013).
The information about which Mr. Shaya can provide personal, firsthand testimony
primarily concerns meetings between Israeli and Chinese officials. See Cochavi Decl., Ex. V, ¶
25. This information has long been in the public record through the duly authorized and publiclyfiled declaration of former Israeli security official Matalon, see id.; Ex. B, submitted in support
of the Plaintiffs in connection with this very case. See Wultz, supra, Pl. Wultz’s Mem. In Opp’n
to Def’s Mot. To Dismiss First Am. Cmpl., Ex A. Matalon provided detailed information to
support the allegation that BOC knowingly facilitated the transfer of millions of dollars between
PIJ and Hamas leaders in Iran and Syria and PIJ and Hamas operatives in the West Bank and
Gaza Strip. Ex. B ¶¶ 4-9. He disclosed the numbers of the BOC accounts used by PIJ and Hamas
(the “Shurafa Accounts”), as well as dates of fund transfers, and amounts of money transferred
24
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 35 of 52
through those accounts. Id. ¶¶ 5, 7. Matalon also averred that Israeli officials met with Chinese
officials in April of 2005 and informed Chinese officials that BOC was facilitating transfers of
funds between PIJ and Hamas leadership and PIJ and Hamas operatives. Id. ¶ 8. He further
attested that BOC continued to knowingly transfer funds for PIJ and Hamas following this
meeting. Id. ¶ 9. Mr. Shaya was a direct witness to these events, and Plaintiffs require his
deposition so that he can confirm the truth of these statements based on his own personal
knowledge. This is critical to overcoming any potential hearsay issues in the Matalon declaration
as to these key allegations, namely, that BOC was on notice that PIJ and Hamas were using BOC
accounts to move funds and sponsor acts of terror. Id. ¶ 8.
The above information has also been made public in other case documents. See Moriah,
supra, Moriah Compl. ¶¶ 30, 38; Moriah Pls.’ Objections and Answers to Def. Bank of China
Limited’s Second Set of Interrogs., No. 12-cv-1594 (S.D.N.Y.) at 10-12 (served Oct. 21, 2013),
Ex. T, and mass-circulation newspapers and other international media outlets.10 As described
above, Movant affirmatively put this and other information into the public record in the United
States as a means to support the Plaintiffs’ lawsuit against the BOC and thereby achieve its
objective of closing BOC accounts determined to be used in the transfer of assets to active
10
See, e.g., Charles Levinson, U.S. Court Case Tests Israeli Resolve, Wall St. J., June 21,
2013, available at http://online.wsj.com/news/articles/SB10001424127887324577904578559531
016718160, attached as Ex. K; Josef Federman, Israeli Leader Faces Test in US Case Accusing
Bank of China of Facilitating Militant Funding, Associated Press, Nov. 12, 2013, available at
http://ca.news.yahoo.com/israeli-leader-faces-test-us-case-accusing-bank-070143813.html,
attached as Ex. L; Amos Harel & Rutie Zuta, The Chinese Connection: A Jewish-American
Family’s Quest to Find Those Responsible for Their Son’s Death, Ex. M; Evan S. Benn, Weston
Family Faces Frustration of Court Fight After Grief of Terror Bombing, Miami Herald, Aug. 22,
2013, available at http://www.miamiherald.com/2013/08/22/3580282/weston-family-facesfrustration.html, attached as Ex. N.
25
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 36 of 52
terrorist groups. Id. This repeated, voluntary disclosure has destroyed and waived any claim that
the state secret privilege protects disclosure of this information.
Nor will the deposition expose other information. As noted above, per an order of the
Southern District of New York, the deposition is to be held under court supervision and proceed
according to carefully delineated parameters. See Scheindlin Order, supra. These measures will
ensure that the questioning does not stray into inappropriate matters, and any remaining concerns
may be addressed through additional orders further developing appropriate deposition
procedures, or through Judge Scheindlin’s direct supervision.
In any case, the information sought from Mr. Shaya does not in substance merit treatment
as state secrets. “[T]he validity of the government’s assertion must be judicially assessed.”
Molerio, 749 F.2d at 822. “[T]he district court must scrutinize the claim of privilege more
carefully when the plaintiff has ‘made a compelling showing of need for the information in
question.’” In re Sealed Case (Horn), 494 F.3d at 144. First, not only has the information
concerning Mr. Shaya’s contacts with the Chinese government already been disclosed, it is
completely stale. There has been no assertion that it relates to any ongoing investigation—
indeed, the accounts at issue were shut down within a short time of the commencement of the
lawsuit. Second, over the course of multiple meetings, upon information and belief, Mr. Shaya
had contact with non-security and non-diplomatic personnel in the Chinese government. Upon
information and belief, these meetings were not subject to any security measures, and involved
officials not involved in national security work. Plainly, no state secret privilege could attach to
such meetings.
Movant’s own authority defeats its position. It states that “state secrets doctrine shields
from disclosure information (usually in the exclusive possession of the Executive Branch) that is
‘vital to the nation’s security or diplomatic relations.’” Mov. Br. at 16 (quoting Northrop, 751
26
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 37 of 52
F.3d at 399). Thus, even if comity applied here, Movant’s own position makes clear that it would
not require the Court to attach the state secrets privilege to the proposed deposition, because the
deposition is to include only subjects that are already in the public record, and not in the
“exclusive possession” of the government. Movant has failed to explain why such information is
“vital to the nation’s security or diplomatic relations.” Northrop, 751 F.3d at 399. Thus whatever
the Court thinks of Movant’s invitation to accord Israel “at least the same degree of protection
when its national security interests are similarly jeopardized,” Mov. Br. at 16, those interests are
not at risk here.
C.
Movant’s Invocation of the State Secrets Privilege Is Facially
Deficient and the Amidror Declaration Should Be Stricken
Movant’s assertion of the privilege must also be rejected because it is not properly
lodged. As Movant concedes, certain procedural requirements must be met to invoke the
privilege. See Mov. Br. at 16 n.8. Among them, the invocation must be made by a “formal claim
of privilege.” Am. Tel. & Tel., 86 F.R.D. at 605. This is generally accomplished by affidavit, see,
e.g., Nat’l Lawyers Guild, 96 F.R.D. at 397, but unsworn declarations from persons outside the
U.S. may be acceptable in a U.S. court where attested as true “under penalty of perjury under the
laws of the United States . . .” 28 U.S.C § 1746; accord L. Civ. R. 5.1(h)(2).
Exhibit B to Israel’s memorandum in support is a document styled “Declaration of Major
General Yaacov Amidror” (the “Amidror Document”), which purports to be the statement of the
Israeli national security advisor. See Mov. Br., Ex. B. By its plain terms, it is not a statement
sworn under oath. Nor does it meet the statutory requirements for unsworn declarations because
it contains no statement that it was made under penalty of perjury under United States law. These
are not just formal shortcomings; they undermine the very credibility of the document, and by
extension the credibility of any legal process that relies upon the document. These failures
27
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 38 of 52
require the court to reject the Amidror Document. See In re Veiga, 746 F. Supp. 2d 27, 37
(D.D.C. 2010); Gotlin v. Lederman, 616 F. Supp. 2d 376, 389 n.7 (E.D.N.Y. 2009), aff’d in part,
vacated in part on other grounds, 483 F. App’x 583 (2d Cir. 2012) (Summary Order). This
renders Israel’s invocation of the state secrets privilege unsupported and inoperative as a basis
for quashing the subpoena.
D.
The Balance of Interests Requires the Court to Uphold the Subpoena
Weighing the interests of comity against the interests of the Plaintiffs strongly militates in
favor of enforcing the subpoena. Mr. Shaya is a first-hand witness that Movant had promised to
make available, and his testimony is critical for Plaintiffs to prove their underlying allegations
that Bank of China had knowledge that its accounts were being used to fund terrorist activities.
His deposition will be limited to confirming facts that Movant has already publicly disclosed.
And yet, movant asserts that comity precludes the deposition, and that Mr. Shaya’s testimony
would violate Israeli law prohibiting the disclosure of restricted information. See Mov. Br. at 19.
Movant is wrong.
As an initial matter, it is not at all clear that Mr. Shaya’s deposition would run afoul of
Israeli law because the information sought has already been disclosed with proper authorization
from the highest echelons of the Israeli government. Moreover, Israeli officials—indeed, even
Uzi Shaya—have been permitted to provide testimony on numerous occasions in support of this
and other civil actions. See Decl. of Uzi Shaya, attached hereto as Ex. D; Matalon Decl. of 2009,
Ex. B; Decl. of Shlomo Matalon, Apr. 19, 2007 (“Matalon Decl. of 2007”), attached hereto as
Ex. C.11 Given this precedent, it is not at all clear that Israeli law would penalize Mr. Shaya’s
11
In addition, other government officials have been permitted to testify in the U.S., as
reported in the Jerusalem Post: “Former high-level government agent Reuven Paz testified in
around half-a-dozen proceedings in the US against Iran prior to 2002, according to an affidavit
that he filed in a federal court in Washington. According to Shurat Hadin, he testified in a
28
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 39 of 52
deposition. This is particularly so given that Israel previously provided Plaintiffs with all of the
information on which Mr. Shaya would be asked to testify and authorized Mr. Shaya’s
testimony. See Cochavi Decl. sec. B-D, and Point IX, infra.
As Movant concedes, whether Mr. Shaya’s obligations pursuant to this Court’s subpoena
would conflict with Israeli law is in any case not dispositive. See Mov. Br. at 19. Given the facts
of this case, even if there were a conflict with Israeli law, it would not support Movant’s
position. When a deponent’s obligation to provide testimony in a United States court may result
in a violation of foreign law, courts must weigh the following comity factors to determine
whether to allow the testimony: “(1) the importance to the litigation of the documents or other
information requested; (2) the degree of specificity of the request; (3) whether the information
originated in the United States; (4) the availability of alternative means of securing the
information; and (5) the extent to which noncompliance with the request would undermine
important interests of the United States, or compliance with the request would undermine
important interests of the state where the information is located.” Societe Nationale Industrielle
Aerospatiale v. U.S. Dist. Ct. for S. Dist. of Iowa, 482 U.S. 522, 544 n.28 (1987) (adopting the
balancing test proposed by Restatement (Third) of Foreign Relations Law § 442(1)(c)(1987)).
Mr. Shaya’s deposition is essential to Plaintiffs’ case. Indeed, Judge Scheindlin described
whether or not Shaya would be permitted to testify as potentially “a make-or-break decision for
this case . . . [b]ecause this may be the only person who really has the knowledge as to what
transpired at the meeting.” Wultz, supra, Tr. Jul. 19, 2013, attached hereto as Ex. O, p. 7. To
prevail on the merits as to certain claims, plaintiffs must show that BOC knowingly provided its
services to terrorist organizations and that the funds it transferred were being used to finance
number of proceedings following 2002 as well.” Yohan Jeremy Bob, Does Israel Have a Legal
Right to Block Testimony Against the Bank of China?, Ex. J.
29
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 40 of 52
terrorist attacks. See 18 U.S.C. § 2339B. Mr. Shaya was one of a handful of participants in
several meetings with Chinese officials, wherein the Chinese government, which owns and
controls BOC, was put on notice of the use of BOC accounts to finance terrorist groups. See
Section [V(B)], supra, and [V(D)], infra. Plaintiffs will be unlikely to prevail on the merits of
those claims without properly verifying, through Mr. Shaya, this already public information. This
weighs heavily in favor of enforcing the subpoena.
The narrow, specific scope of information sought—the first-hand testimony about
specific events already in the record—also tips the scales in favor of enforcing the subpoena. The
subpoena should not be quashed simply because it seeks information that did not originate in the
U.S., because the Israeli government specifically disclosed this information with the knowledge
and intention that it be used in support of the Underlying Litigation in U.S. courts.
Israel’s support has been the sine qua non of this litigation, and no alternative means exist
to obtain the relevant testimony. Mr. Shaya is one of a small handful of Israeli government
officials that attended the meetings with Chinese officials regarding the Shurafa accounts. To
prove their case, Plaintiffs need corroborating testimony from him or one of the other current or
former Israeli officials that were present when China was put on notice of terrorist financing
activity in BOC accounts, and Mr. Shaya is best positioned given his history with the case and
willingness to testify in the United States. See 1st Shaya Ltr., Ex. E. He has also been provided
with the financial means to do so. See Mov. Br., Ex. A (enclosing funds for travel expenses).
Obtaining his testimony will not be a burden to him or to Israel.
Moreover, since Mr. Shaya is a former official and the subpoena does not seek
information directly from the Israeli government, Shaya’s complying with the subpoena will not
cause Israel any material hardship or subject it to any “unfair or abusive discovery.” See Mov.
Br. at 20. Israeli sovereign interests will not be undermined by permitting Mr. Shaya’s
30
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 41 of 52
deposition, because the information plaintiffs seek is already public and poses no threat to
Israel’s national security.
VI.
ISRAEL LACKS STANDING TO RAISE THE 100-MILE RULE
Even if the Israel had standing to bring a Rule 45(c)(3)(A) motion, and even if its motion
were timely, Israel does not have standing to object to a subpoena on the ground that it “requires
a person who is neither a party nor a party’s officer to travel more than 100 miles.” Fed. R. Civ.
P. 45(c)(3)(A)(ii). That provision is intended to protect against imposing excessive burdens upon
non-parties.12 In re Edelman, 295 F.3d 171, 178 (2d Cir. 2002) (“The purpose of the 100 mile
exception is to protect such witnesses from being subjected to excessive discovery burdens in
litigation in which they have little or no interest.”). The burden belongs to the witness, not to a
third party that suffers no harm as a result of a supposedly excessive burden placed upon a
consenting party. Ins. Corp. of Hanover v. Vantage Prop. Mgmt., LLC, No. 04-1013-CV-WSOW, 2006 WL 1131759, at *1 (W.D. Mo. Apr. 25, 2006).
As noted, Mr. Shaya’s failure to raise objections on the ground of undue burden appears
to have been intentionally waived. Mr. Shaya did not object to being deposed in Washington and
agreed to move the deposition to New York. Along with the subpoena he was provided with a
check for $3,140 to cover, inter alia, his travel expenses, see Mov. Br. Ex. A, and was apparently
prepared to make the trip until this court stayed the deposition.
Accordingly, even if the subpoena runs afoul of Rule 45(c)(3)(A)(ii), that objection
needed to be timely raised by Mr. Shaya. Mr. Shaya has not raised it, and is therefore waived.
12
Israel might object to this characterization on the ground that Rule 45(c)(3)(A)(iv)
expressly protects against “undue burden” and subsection (ii) should not be interpreted as
redundant with subsection (iv). But subsection (iv) is simply a catchall intended to reach undue
burdens not covered by subsections (i)-(iii). Subsection (ii) codifies 100 miles as the dividing
line between that which is an “undue burden” and that which is not. Fed. R. Civ. P. 45(c)(3)(A).
31
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 42 of 52
VII.
IF THE AMIDROR DOCUMENT IS NOT STRICKEN,
INTERVENOR-PLAINTIFFS SHOULD BE PERMITTED TO
CROSS-EXAMINE AMIDROR
The Amidror Document purports to state facts material to the substantive resolution of
the instant motion to quash. These facts cannot and should not be accepted just because they are
stated. It is the fundamental nature of our adversarial system of justice that no statement may be
accepted as true unless it is subjected to cross-examination, “the greatest legal engine ever
invented for the discovery of the truth.” 5 John Henry Wigmore, Evidence in Trials at Common
Law § 1367 at 32 (James H. Chabourn ed., Little Brown 1974); see generally Davis v. Alaska,
415 U.S. 308, 316 (1974) (“Cross-examination is the principal means by which the believability
of a witness and the truth of his testimony are tested”); Jules Epstein, Cross-Examination:
Seemingly Ubiquitous, Purportedly Omnipotent, and “At Risk,” 14 Widener L. Rev. 427, 430-34
(2009) (discussing the historical roots of the right to cross-examination and asserting that “as to
all witnesses who actually testify, and to at least a core aspect of hearsay, cross-examination is
the sine qua non of the adversary adjudicative process”). Before the statements contained in the
Amidror Documents are considered by this Court, Intervenors should be afforded the right to
question Mr. Amidror and to introduce contrary evidence. See, e.g.. Fed. R. Evid. 607 (granting
“any party” the authority to impeach a witness); see also Coffin v. Sullivan, 895 F.2d 1206, 1212
(8th Cir.1990); (finding that the Due Process Clause of the Federal Constitution can create an
absolute right to cross examination under certain circumstances); Lidy v. Sullivan, 911 F.2d
1075, 1077 (5th Cir. 1990) (same).
Israel’s motion to quash, like all motions supported solely by affidavit testimony, is
governed by Rule 43(c), which provides:
32
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 43 of 52
Evidence on a Motion. When a motion relies on facts outside the record, the court
may hear the matter on affidavits or may hear it wholly or partly on oral
testimony or on depositions.
Fed. R. Civ. P. 43(c).
Rule 43(c) expressly authorizes the Court to direct that motions raising factual issues be
heard on oral testimony—including of course cross-examination either in court or at depositions.
By filing a motion relying on factual averments by a witness, Israel has subjected itself to the
discretion of the Court to allow deposition or cross-examination of that witness. Israel cannot
have it both ways: it cannot come before the court by filing a motion making factual averments,
and at the same time argue that it is not subject to the authority explicitly granted this Court by
Rule 43(c) to order that the motion be heard on oral testimony or depositions.
A.
Amidror is a “Witness” Subject to the Federal Rules of Evidence
By submitting sworn testimony in this action, the Israel has subjected itself and its affiant
to the far-reaching authority of this Court pursuant to the Federal Rules of Evidence.
Numerous provisions of the FRE apply to any and every “witness,” without distinction.
Thus, while perhaps Israel may not be a “person” within the meaning of Rule 45, there is no
question that the Israel’s affiant is a “witness” within the meaning of the relevant provisions of
the Federal Rules of Evidence.
For example, Fed. R. Evid. 607 provides that: “The credibility of a witness may be
attacked by any party, including the party calling the witness.” Fed. R. Evid. 607. Likewise, Fed.
R. Evid. 611 provides that the Court has authority and control over “the mode and order of
interrogating witnesses and presenting evidence” including “Scope of cross examination.” Fed.
R. Evid. 611(b).
Amidror is a “witness” within the meaning of Fed. R. Evid. 607 and 611, and he is
subject to the terms of those provisions. Thus, the Court has the authority to compel Israel to
33
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 44 of 52
produce its affiant in order to allow plaintiffs to exercise their right under Fed. R. Evid. 607 to
challenge his credibility through cross-examination, and the Court has control over the “mode
and order” of the government affiant’s cross-examination.
Additionally and/or alternatively, the government’s position is analogous to that of an
individual who elects to waive constitutional immunity from self-incrimination by voluntarily
agreeing to testify. The Supreme Court has explained the rationale underlying the rule that
voluntary testimony constitutes a waiver of a constitutional privilege against self-incrimination,
as follows:
Once a defendant decides to testify, the interests of the other party and regard for
the function of courts of justice to ascertain the truth become relevant, and prevail
in the balance of considerations determining the scope and limits of the privilege
against self-incrimination.
Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (internal quotes and brackets omitted). See also
United States v. Higginbotham, 539 F.2d 17, 24 (9th Cir. 1976) (“It is not a reasonable argument
to say that the Fifth Amendment gives . . . a defendant . . . an immunity to cross-examination on
the matters he himself puts in dispute by his testimony”).
The identical rationale applies here: once Israel decided to introduce testimony in support
of its motion, “the interests of the other party and regard for the function of courts of justice to
ascertain the truth become relevant and prevail” over and trump any claim by Israel that it would
rather Amidror not be cross-examined.
Indeed, since this rationale is sufficient to trump the black-letter 5th Amendment
protections of a defendant who has elected to testify, it is a fortiori sufficient to override the
merely doctrinal bar of sovereign immunity or purported state secret privilege, when, as here,
Israel has elected to submit testimony.
34
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 45 of 52
B.
Fifth Amendment Due Process Entitles Plaintiffs to Cross-Examine
the Government’s Affiant and Overrides Sovereign Immunity
Israel takes the position that it can both introduce testimony into any judicial proceedings
it chooses and simultaneously block the affected parties from challenging that testimony through
cross-examination. No authority for such a remarkable position exists. As the D.C Circuit
emphasized long ago:
It is elementary . . . in our system of law that adjudicatory action cannot be validly
taken by any tribunal, whether judicial or administrative, except upon a hearing
wherein each party shall have opportunity to know of the claims of his opponent,
to hear the evidence introduced against him, to cross-examine witnesses, to
introduce evidence in his own behalf, and to make argument. This is a
requirement of the due process clause of the Fifth Amendment of the
Constitution.
Phila. Co. v. SEC, 175 F.2d 808 (D.C. Cir.) (emphasis added), vacated and remanded as moot,
339 U.S. 901 (1949).
Indeed, ensuring Due Process, including exercise of the right of cross-examination, goes
to the very raison d’être of the courts:
The court’s function is to assure that no party will be deprived of property without
satisfying the fundamentals of due process, including the requirement that the
defendant be furnished with notice and a statement of the claim against him and
the opportunity to prepare and present a defense, a hearing, the right to confront
and cross-examine witnesses, and findings.
Brault v. Town of Milton, 527 F.2d 730, 738-39 (2d Cir. 1975) (emphasis added).
It is fundamental to Due Process that a litigant have an opportunity to be confronted with
all adverse evidence and to have the right to cross-examine available witnesses. Nevels v.
Hanlon, 656 F.2d 372, 376 (8th Cir. 1981) (emphasis added). Similarly, “[M]inimum procedural
due process requires adequate notice of a hearing at which an opportunity will be afforded the
parties to present sworn testimony and to cross-examine witnesses who sponsor opposing
35
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 46 of 52
views.” Calhoun v. Cook, 487 F.2d 680, 683 (5th Cir 1973) (emphasis added); see also, e.g.,
Jones v. Wildgen, 320 F. Supp. 2d 1116, 1128 (D. Kan. 2004) (“Absent specific statutory
language to the contrary” a hearing includes “the right to . . . cross-examine adverse witnesses
and contest adverse findings”) (citing Califano v. Yamasaki, 442 U.S. 682 (1979)); Guralnick v.
Sup. Ct. of N.J., 747 F. Supp. 1109, 1113 (D.N.J. 1990) (Due Process “provides the right to
confront and cross-examine witnesses prior to the deprivation of a life, liberty or property
interest”), aff’d, 961 F. 2d 209 (3d Cir. 1992); Branch v. Hempstead Cty. Mem’l Hosp., 539 F.
Supp. 908 (W.D. Ark. 1982) (While no particular form of hearing procedure is required to
comport with procedural due process, the right to confront and cross-examine witnesses must be
present); Harries v. United States, 350 F.2d 231, 234 (9th Cir. 1965) (“The right to cross
examine a witness is fundamental in our judicial system”).
The Court should not make factual determinations absent an opportunity for the parties to
probe them.
VIII. ISRAEL IS NOT ENTITLED TO THE BENEFITS OF COMITY IF
IT IS NOT WILLING TO RECIPROCATE
On June 26, 2013, the Southern District of New York issued a request to the State of
Israel pursuant to the Hague Convention. See Endorsed Letter of Gabriel W. Gorenstein, M.J.,
June 26, 2013, Wultz v. Bank of China, No. 1:11-cv-01266 (SAS) (S.D.N.Y.), Dkt. No. 276
(“June Hague request”). On July 2 and July 22, Judge Scheindlin sent letters to Israel requesting
a statement inquiring when Israel anticipates responding to the June Hague request. See Letter
from Shira A. Scheindlin to Gil Avriel, Legal Advisor at the Israeli National Security Council
(July 2, 2013), attached as Ex. P; Letter from Shira A. Scheindlin to Yitzchak Blum, Deputy
Director at the Israeli Department of International Affairs (July 22, 2013), attached as Ex. Q.
Israel responded in letters dated July 22 and August 16, 2013, informing Judge Scheindlin that it
36
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 47 of 52
was still reviewing the request and would offer more detail later. See Letter from Yitzchak Blum,
Deputy Director at the Israeli Department of International Affairs, to Shira A. Scheindlin (July
12, 2013), attached as Ex. R; Letter from Ayelet Levi, First Deputy to the Israeli State Attorney,
to Shira A. Scheindlin (Aug. 16, 2013), attached as Ex. S; Judge Scheindlin sent another letter on
September 27 to inform Israel of the pending deposition of Mr. Uzi Shaya, which was then
scheduled for November 25. Wultz, supra, Dkt. No. 337. As far as the Intervenors are aware,
Israel has never responded to this last letter and has still not provided Judge Scheindlin with a
more definite date of its anticipated response to the Hague request. At the time of this writing,
nearly six months have passed since the Southern District sent the Hague request to Israel and
nearly a month has passed since the original scheduled date of Mr. Shaya’s deposition. Not only
has Israel not offered a substantive response, it has not even indicated whether it will respond.
The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or
Commercial Matters (“Hague Convention”) provides:
If the Central Authority [of the receiving state] considers that the request does not
comply with the provisions of the present Convention, it shall promptly inform
the authority of the State of origin which transmitted the Letter of Request,
specifying the objections to the Letter. * * *
The requesting authority shall, if it so desires, be informed of the time when, and
the place where, the proceedings will take place, in order that the parties
concerned, and their representatives, if any, may be present. * * *
A Letter of Request shall be executed expeditiously. * * *
The execution of a Letter of Request may be refused only to the extent that -(a) in the State of execution the execution of the Letter does not
fall within the functions of the judiciary; or
(b) the State addressed considers that its sovereignty or security
would be prejudiced thereby.* * *
37
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 48 of 52
Hague Convention arts. 5, 7, 9, 12. It makes clear that Israel is not free to ignore the June Hague
request or the letters sent by Judge Scheindlin requesting to be informed of the date on which
Israel anticipates issuing its formal response. If Israel wishes not to respond to the June Hague
request, it may do so, as long as its reasons for not responding fit within those permissible
excuses specified in the Hague Convention. Israel may not, however, hold the June Hague
request indefinitely without response.
Despite its failure to comply with its treaty obligations and the June Hague request, Israel
now requests “comity” from this Court. Mov. Br. at 16-17, 19, 21. Israel is not abiding by the
terms of a multilateral treaty that it signed, along with the United States, dealing with the very
subject matter on which it now seeks this court’s intervention. Israel refuses to respond to a duly
executed Hague request and simultaneously seeks “comity” in its effort to quash the deposition
that is the subject of the Hague request. Its appeal for comity should be denied. See Pravin
Banker Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 854 (2d Cir. 1997) (“Although
courts in this country have long recognized the principles of international comity and have
advocated them in order to promote cooperation and reciprocity with foreign lands, comity
remains a rule of practice, convenience, and expediency rather than of law”) (emphasis added;
internal quotation marks omitted); cf. Dist. of Colum. v. Int’l Distrib. Corp., 331 F.2d 817, 820
(D.C. Cir. 1964) (referring to “comity” as synonymous with “reciprocity”).
IX.
ISRAEL IS BARRED BY ESTOPPEL UNDER ISRAELI LAW
FROM RENEGING ON ITS COMMITMENT TO PRODUCE UZI
SHAYA AND OTHER EVIDENCE IN SUPPORT OF THIS CASE
In addition to the foregoing arguments made under U.S. law, Israel’s motion raises issues
of Israeli law, specifically whether the commitment by the Israeli government to provide
38
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 49 of 52
evidence to support this case, including the testimony of Uzi Shaya is a binding and enforceable
obligation.
Rule 44.1 authorizes courts to conduct their own independent research to determine
foreign law but it imposes no duty upon them to do so. Fed. R. Civ. P. 44.1; see also Carey v.
Bahama Cruise Lines, 864 F.2d 201, 205 (1st Cir. 1988). Thus, “the party claiming foreign law
applies carries both the burden of raising the issue that foreign law may apply in an action and
the burden of proving foreign law to enable the district court to apply it in a particular case.”
Baker v. Booz Allen Hamilton, Inc., 358 F. App’x 476, 481 (4th Cir. 2009). Written or oral
expert testimony and extracts from various kinds of foreign legal materials remains the basic
mode of proving foreign law. 9A Charles Alan Wright & Alan R. Miller, Fed. Prac. & Proc.:
Civ. 3d § 2444 (2008 & Supp. 2013).
Intervenors are filing herewith the declaration of Roy Cochavi, a member of the Israeli
Bar, who describes the Israeli law applicable to this situation and analyzes this case under that
Israeli law.
Mr. Cochavi concludes that the commitment of the Israeli government to support this
case, which they instigated in the first place, and specifically the commitment to make Uzi Shaya
available for testimony in this case, is an enforceable contract under Israeli law. He concludes
that:
a)
The undertaking given by the State of Israel to provide Darshan-Leitner
and the Plaintiffs with the evidence required by them for purposes of conducting
the claims against BOC and the specific undertaking to enable the testimony of
Uzi Shaya (both as part of the broader undertaking and independently) are of
legally binding effect in Israeli Law; this is the case both in terms of a
governmental promise, by force estoppel against an authority, and as a
governmental contract between Darshan-Leitner and the plaintiffs on the one
hand, and the State of Israel, on the other hand.
39
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 50 of 52
b)
The aforementioned undertakings are legally binding not only on the level
of the relations between the State of Israel and Darshan-Leitner, but also on the
level of the relations between the State of Israel and the plaintiffs who are
represented by Darshan-Leitner in terms of a governmental promise, by force of
estoppel against an authority, and by force of a governmental contract between
the State of Israel and the plaintiffs (by way of their attorneys), and alternatively
as a contract in favor of a third party, inasmuch as the plaintiffs are a third party
(irrespective of whether one relates to the specific undertaking as one which stems
from a broader undertaking, or if one relates to the specific undertaking as an
independent undertaking, standing it its own right).
c)
By force of these undertakings (in other words, the broader undertaking
and the more specific one deriving therefrom), it is possible to force the State of
Israel, under Israeli Law, to enable the testimony of Uzi Shaya in accordance with
the conditions agreed upon and stipulated in Shaya’s letter of March 20, 2013
(both if one relates to the specific undertaking as stemming from the broader
undertaking, and if one relates to the specific undertaking as an independent
undertaking in its own right).
Cochavi Delc., ¶ 54.
Israel should not be permitted to seek relief from this Court that is contrary to its own law
and would have the effect of this Court putting its imprimatur on the violation of binding
commitments enforceable under Israeli law.
CONCLUSION
For the foregoing reasons and those to be discussed at oral argument, the State of Israel’s
motion to quash the third party subpoena of Mr. Uzi Shaya should be denied.
40
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 51 of 52
Dated: Brooklyn, New York
December 17, 2013
Respectfully submitted,
THE BERKMAN LAW OFFICE, LLC
Counsel for the Intervenors-Plaintiffs
by:
Robert J. Tolchin
(D.C. Bar #NY0088)
111 Livingston Street, Suite 1928
Brooklyn, New York 11201
(718) 855-3627
rjt.berkman@gmail.com
CADWALADER, WICKERSHAM & TAFT, LLP
Counsel of record to the Intervenors as to
state secrets and sovereign immunity issues
by:
s/ Kenneth L. Wainstein
Kenneth L. Wainstein
(D.C. Bar #451058)
700 Sixth Street, N.W.
Washington, D.C. 20001
202-862-2200
ken.wainstein@cwt.com
Solomon Shinerock
One World Financial Center
New York, New York 10201
212-504-6000
solomon.shinerock@cwt.com
USActive 29780578.4
Case 1:13-mc-01282-RBW Document 21 Filed 12/17/13 Page 52 of 52
CERTIFICATE OF SERVICE
I hereby certify on December 17, 2013, a copy of the within Memorandum in Opposition
and Declaration of Roy Cochavi, together with the exhibits annexed thereto, was served via
United States District Court ECF filing system on all counsel of record.
USActive 29780578.4