107 F. Supp. 3d 272 | S.D.N.Y. | 2015
OPINION AND ORDER
I. INTRODUCTION
On October. 14, 2014, the Court, on plaintiffs’ motion, issued an order to show cause why a subpoena should not issue
II. BACKGROUND
Plaintiffs seek to depose Cieehanover in connection with a future application for a spoliation sanction. Plaintiffs had sought testimony from Uzi Shaya, a former Israeli national security officer. The State of Israel, after initially supporting Plaintiffs’ attempts to secure Shaya’s testimony, ■ later, withdrew that support.
Plaintiffs allege that Israel withdrew its support for Shaya’s testimony because of pressure exerted on Israel by the People’s Republic of China, and claim that Ciechan
Ciechanover. responded to the order to show cause and attached a declaration explaining the facts surrounding the phone call at issue. According to his declaration, Ciechanover states that in his capacity as a senior advisor to the Government of Israel, he was contacted by the Prime Minister’s Office in late 2013 and asked to contact the parties’ counsel in Wultz and inquire whether the parties might be amenable to an out-of-court resolution of the lawsuit.
During the conference addressing this matter, Mr. Wolosky made a statement under oath regarding the content of this phone call. He stated that Ciechanover “identified himself as a former Israeli government official” and explained that he was “occasionally called- upon to solve problems for Israel.”
In response to plaintiffs’ interrogatories, Ciechanover explained that he has been a “senior advisor to various high-ranking’Israeli government officials,” including four Israeli prime ministers, after his retirement from civil service.
III. COMMON LAW FOREIGN SOVEREIGN IMMUNITY
Foreign official immunity provides broad protection from a domestic court’s jurisdiction.
Courts apply a “two-step procedure” to assess common-law claims of foreign sovereign immunity.
Case law involving immunity of non-party foreign officials is scarce. But a D.C. District Court recently held — and the D.C. Circuit unanimously affirmed — that non-party, Alvaro Uribe, a former president of Colombia, could not be deposed even though he was served with a subpoena while visiting the District of Columbia.
IV. DISCUSSION
There is no indication that Ciechanover or the State of Israel requested a Suggestion of Immunity from the State Department. Therefore, I must determine “whether the ground of immunity is one which it is the established policy of the State Department to recognize.”
Ciechanover made the phone call in question on behalf of the Israeli government, and therefore has immunity with respect to this act. As required under common law foreign immunity, Ciechanover acted as an agent of a foreign government and performed the act as part of his official duty. Further, exercising jurisdiction would have the effect of enforcing a rule of law against the state.
The facts elicited in Ciechanover’s declaration, answers to interrogatories, and Mr. Wolosky’s statement establish that Ciechanover acted as an agent of the Israeli government for this specific task. He was contacted by the National Security Advis- or, a high-ranking official in the Prime Minister’s office, and asked to undertake a task. He performed that task and then reported back. He did not undertake this task in his capacity as a private individual — he performed it solely because the National Security Advisor made a request. As such, he acted as an agent of the Israeli government.
Plaintiffs contend that Ciechanover was not acting at the behest of the Israeli government. Instead, plaintiffs allege that the Prime Minister specifically asked a non-governmental official to carry out this task in order maintain distance from it. Plaintiffs argue that Ciechanover made this call to “solve Mr. Netanyahu’s political problem.”
However, this version of events is pure conjecture. No facts exist to support the contention that Ciechanover performed this task as a personal favor to the Prime Minister. Indeed, the request came from General Amidror, the National Security Advisor, and there is nothing to suggest that the Prime Minister had any contact with Ciechanover in relation to this assignment.
Plaintiffs further argue that Ciechanover’s refusal to fully answer the interrogatories leaves questions about his role, and that the Court should draw inferences in favor of plaintiffs. However, the questions that Ciechanover did not answer were either duplicative, outside the parameters set at the conference, or irrelevant.' For example, plaintiffs complain that Ciechanover did not answer the question “What specific duties, if any, are required of you as a result of your status as ‘senior advis- or’?”
Plaintiffs also contend that Ciechanover’s failure to' answer questions regarding whether he is a registered foreign agent under the Foreign -Agent Registration Act or the Lobbying Disclosure Act of 1995 has particular significance. Plaintiffs contend that if he is an agent, then he must be registered, and “[hjaving failed to register ..., Dr. Ciechanover should not be heard to argue that he-was a foreign agent entitled to special protections____”
Finally, if this Court exercises jurisdiction and issues a subpoena, compelling Ciechanover’s testimony would “have the effect of enforcing a rule of law against the state.”
Y. CONCLUSION
For the foregoing reasons, plaintiffs’ request for a subpoena is DENIED.
SO ORDERED.
. Because Cieehanover is a permanent resident of the United States who resides in Israel, plaintiffs may procure his deposition testimony pursuant to a subpoena issued under 28 U.S.C. § 1783.
. See Dr. Joseph Ciechanover’s Response to the Court’s Order to Show Cause Why a Subpoena Should Not Issue Under 28 U.S.C. ' § 1783 ("Opp. Mem.’’), at 1. -
. See Plaintiffs’ Interrogatories/Questions to .Joseph "Yossi" Cieehanover ("Interrogatories”), Exhibit B to 2/4/15 Letter to the Court from Robert J. Tolchin, Counsel to Plaintiffs ("Tolchin Letter”).
. 1/20/15 Letter to the Court from Stewart D. Aaron, Counsel to Cieehanover, at 2.
. See Tolchin Letter, at 2.
. This case has proceeded in tandem with the Wultz v. Bank of China case. The general facts and procedural history of these cases and-Plaintiffs’ numerous attempts-to obtain discovery from Bank of China were laid out in previous opinions and familiarity with them is assumed. See Wultz v. Bank of China Ltd., 32 F.Supp.3d 486 (S.D.N.Y.2014); Wultz v. Bank of China Ltd., 942 F.Supp.2d 452 (S.D.N.Y.2013); Wultz v. Bank of China Ltd., 910 F.Supp.2d 548 (S.D.N.Y.2012).
. Memorandum of Law in Support of Plaintiffs’ Motion for a Subpoena Pursuant to 28 U.S.C. § 1783, at 6.
. Id.
. 11/7/14 Declaration of Dr. Joseph Ciechanover ("Ciechanover Decl.”), Exhibit to Opp. Mem., ¶ 4.
. Id.
. Id. ¶ 5.
. Id.
.Id. ¶6.
. Transcript of 11/25/14 Conference ("Tr.”) at 31.
. Id. at 32. Though this contradicts Ciechanover’s declaration, the discrepancy is irrelevant as it does not relate to the capacity in which Ciechanover made the phone calf
. Id.
. Id. at 33-34.
. Dr. Joseph Ciechanover’s Objections and Responses to Plaintiffs’ Interrogatories Regarding Immunity • ("Ciechanovér Responses”), at 4. (Diet. 127).
.. id.
. See id. at 4-5.
. Id. at 6-7.
. 1/14/15 Letter from Joseph M. Cohen, Israeli National Security Advisor, to the Court, Exhibit to 1/20/15 Letter from Stewart D. Aaron.
. Ciechanover also argues that his testimony is not “necessary in the interest of justice” as required by 28 U.S.C. § 1783. Because I find that Ciechanover has testimonial immunity, I need not determine whether his testimony is necessary.
. See The Schooner Exch. v. McFaddon, 11 U.S. 116, 137, 7 Cranch 116, 3 L.Ed. 287 (1812) ("One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another....”); Belhas v. Ya’alon, 515 F.3d 1279, 1293 (D.C.Cir.2008).
. See 560 U.S. 305, 320, 130 S.Ct. 2278, 176 L.Ed.2d 1047 (2010).
. Id. at 324, 130 S.Ct. 2278.
. Id. at 312, 130 S.Ct. 2278.
. Id. at 311, 130 S.Ct. 2278 (quoting Ex parte Peru, 318 U.S. 578, 581, 63 S.Ct. 793, 87 L.Ed. 1014 (1943)).
. Id.
. Id. (citing Ex parte Peru, 318 U.S. at 587, 63 S.Ct. 793).
. Id. at 312, 130 S.Ct. 2278 (citing Republic of Mexico v. Hoffman, 324 U.S. 30, 36, 65 S.Ct. 530, 89 L.Ed. 729 (1945)).
. See Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir.2012).
. See Heaney v. Gov’t of Spain, 445 F.2d 501, 504 (2d Cir.1971) (quoting Restatement of Foreign Relations Law of the United States § 66(f) (1965)) (“[T]he immunity of a foreign state extends to any other ‘official or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.’ ”) (emphasis added).
. Butters v. Vance Int'l, Inc., 225 F.3d 462, 466 (4th Cir.2000) (citing Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21-22, 60 S.Ct. 413, 84 L.Ed. 554 (1940)).
. Rishikof v. Mortada, No. 11 Civ. 2284, 70 F.Supp.3d 8, 12, 2014 WL 4802455, at *3 (D.D.C. Sept. 29, 2014) (citing Yousuf, 699 F.3d at 774 and Matar v. Dichter, 563 F.3d 9, 14 (2d Cir.2009)).
. See Matar, 563 F.3d at 14 ("An immunity based on acts — rather than status — does not depend on tenure in office.”).
. Yousuf, 699 F.3d at 775 (internal quotations omitted).
. See Giraldo v. Drummond Co., Inc., 808 F.Supp.2d 247, 249 (D.D.C.2011), aff’d, 493 Fed.Appx. 106 (D.C.Cir.2012), cert. denied, - U.S. -, 133 S.Ct. 1637, 185 L.Ed.2d 617 (2013).
. Id. (citing Statement of Interest and Suggestion of Immunity of the United States, Giraldo v. Drummond Co., 808 F.Supp.2d 247 (D.D.C.2011) (No. 10-mc-764) ("Giraldo SOI”), at 1-2).
. Id.
. Id. at 250-51 (citing Foremost-McKesson, Inc. v. Islamic Repub. of Iran, 905 F.2d 438, 443 (D.C.Cir.1990)).
. Somantar, 560 U.S. at 312, 130 S.Ct. 2278 (citing Hoffman, 324 U.S. at 36, 65 S.Ct. 530).
.Tr. at 27.
. See Ciechanover Responses at 5 (Question: "Did this contact include contact with the Prime Minister?" Answer: "No.").
. See Tr. at 15 (“You're a private citizen, it’s not us, go and see if you can make this go away.”).
. Id. at 32.
. Interrogatories at 2.
. Id. at 1,
. Ciechanover Responses at 4.
. See .Interrogatories at 3-4; Tr. at 39 ("I would not let any questions be asked as to what was said to you, what do you know about this case, was the name Wultz mentioned, was the name Moriah mentioned.... It’s just to establish his role, on whose behalf did he make this call, and what does it mean to be a senior advisor.”).
. 2/9/15 Letter from Robert J. Tolchin to the Court, at 1.
. See Matar, 563 F.3d at 14.
. Heaney, 445 F.2d at 504.
. Id. at 503.
. Id. (quoting Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (2d Cir.1964)).
. Id.