Today’s Case of the Day, Estate of Klieman v. Palestinian Auth. (D.D.C. 2011), involves a letter of request under the Hague Evidence Convention for the testimony of witnesses in Israel. Klieman, a U.S. citizen, was the victim of a Palestinian terrorist attack on a civilian bus in Israel in 2002. The claim was that Klieman had been murdered by Tamer Rimawi, a member of the Al Aqsa Martyrs Brigade. Rimawi had already been convicted of the crime. He had given a sworn statement confessing to the crime and implicating Al Aqsa and other Palestinian organizations, including Fattah. Klieman’s heirs and estate sought to depose various Palestinians who were members of the organizations named as defendants in the suit (Fattah, the PLO, the Palestinian Authority, etc.). In particular, the plaintiffs sought to depose Fuad Shubaki, allegedly the Palestinian Authority’s main financier, and Marwan Barghouti, the political figure, both of whom were in Israeli prisons. They also sought to depose Matthew Kalman and Khaled Abu Toameh, two journalists who had covered the Second Intifada and who supposedly had interviewed senior Palestinian figures with knowledge of matters relating to the responsibility of various Palestinian leaders and Palestinian institutions for the attacks.
The court rejected the defendants’ relevance arguments with regard to Shubaki and Barghouti, on the grounds that the financing of the Palestinian organizations, and the possible use of their funds for terror attacks, was clearly relevant to those organization’s civil liability for the attack. With regard to the two journalists, the court also rejected the defendants’ relevance arguments. Testimony from them about the interviews they had conducted with Palestinian leaders might lead to the discovery of admissible evidence. (The issue of any journalist’s privilege was left for another day).
Although the plaintiffs had previously taken several depositions that covered some of the same grounds the plaintiffs planned to cover in the proposed depositions, the court rejected the defendants’ argument on cumulativeness. Shubaki and Barghouti were alleged to have direct ties to the Al Aqsa Brigade, which in turn was alleged to be directly responsible for the murder.
However, the court did grant the defendants’ request that the journalists be required to produce their notes. The plaintiffs objected on the grounds that the purpose of the defendants’ request was merely to intimidate and deter the journalists. But the court held that the documents were plainly relevant for the same reasons that the testimony sought was relevant and that the documents should therefore be compelled. Interestingly, Israel has not made an Article 23 declaration, which would have provided a potential argument for the plaintiffs on this point.