Discovery in litigation over a 2002 terrorist bombing at a West Bank pizzeria took a detour Friday as new filings showed attorneys in a dispute over how U.S. rules should apply to depositions taken overseas.
The families of U.S. citizens killed in the attack sued (PDF) the Palestinian Authority and the Palestine Liberation Organization that same year in U.S. District Court for the District of Columbia, accusing the PLO of carrying out the attack and the Palestinian Authority of providing material support. The court entered a default against the two Palestinian defendants in 2005, but U.S. District Judge Richard Leon vacated the entry in July at the defendants' request, reviving the litigation.
Attorneys involved in the case were scheduled to depose Ahmed Sa'adat, a Palestinian leader serving a jail sentence in Israel, in May. On Friday, however, the plaintiffs filed a motion (PDF) for “urgent resolution” of the question of whether U.S. rules governing depositions should apply.
According to the motion, attorneys for the Palestinian defendants indicated that they did not believe they would be bound by those rules, which include prohibitions on attorneys making so-called speaking objections – a suggestion of a response to a witness while objecting to a question – and giving other cues.
“The claim that U.S. attorneys appearing in a deposition sought by a U.S. court for use in a U.S. lawsuit are not bound by the U.S. rules governing attorney conduct in depositions is not only meritless but frivolous,” wrote lead plaintiffs’ counsel Robert Tolchin of the Berkman Law Office in Brooklyn, N.Y.
Tolchin wrote that it “might be an interesting theoretical exercise” to explore whether U.S. attorneys would be bound to U.S. rules for depositions in a country that had explicit rules allowing speaking objections and other conduct barred in the United States. But he added that, because depositions don’t exist in the Israeli judicial system, the defense attorneys “mean to say that such depositions should not be governed by any rules at all” (emphasis in the original).
A lead attorney for the Palestinian defendants, Richard Hibey of Miller & Chevalier in Washington, declined to comment when reached by phone. The defendants had not filed a response to the motion as of today.
Both parties filed a joint motion (PDF) today to refer the issue to a U.S. magistrate judge if Leon decides that would be the “most expeditious” way to resolve the dispute.