USPPL SUNT DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK | cancer □□ | DATE FILED:_ 2/14/2025 AVERBACH et al., Plaintiffs, -against- ORDER ON MOTION TO COMPEL CAIRO AMMAN BANK, 19-CV-0004-GHW-KHP Defendant.
KATHARINE H. PARKER, United States Magistrate Judge. This case arises out of a series of terrorist attacks (the “Attacks”) in Israel between 2000 and 2004 that were perpetrated by Harakat al-Muqawama al-Islamiya (“Hamas”). Plaintiffs include United States (“U.S.”) nationals injured in the attacks, as well as the estates, heirs, and families of U.S. nationals killed or injured in the attacks. Before the Court is Plaintiffs’ motion to compel production of documents related to the 66 accounts referenced in Khalid Mahmoud Al Qassem’s March 28, 2024 supplemental declaration (“Motion to Compel”). (ECF No. 289.) Defendant opposes production, arguing that producing the records and information sought by Plaintiffs would violate Jordanian and Palestinian bank secrecy laws. For the reasons set forth below, Plaintiffs’ Motion to Compel is granted. BACKGROUND Defendant Cairo Amman Bank (“CAB”) is a financial institution incorporated and headquartered in Amman, Jordan, with branches in Jordan and the Palestinian territories. (Third Amended Complaint (“TAC”) 11 500-01.) The TAC alleges that in the years immediately preceding and during the Attacks, i.e. from 1999 through 2004, CAB facilitated the flow of
money used by Hamas to finance terrorism, thus aiding and abe�ng Hamas’s terrorism. (Id. ¶ 1, 6-7.) The TAC alleges that CAB provided U.S. dollars to Hamas by knowingly maintaining accounts for and providing financial services for individuals and organiza�ons that were
associated with Hamas and that in turn provided support to Hamas; and by facilita�ng reward payments to families of Hamas suicide bombers, other “martyrs,” and Hamas prisoners. (Id.) PROCEDURAL HISTORY During a discovery conference in December of 2023, Plain�ffs informed the Court that the par�es were at an impasse regarding the produc�on of bank records. Plain�ffs specifically
sought bank records that would reflect CAB’s provision of financial services to individuals or en��es involved in terrorist ac�vity. CAB’s posi�on was that the produc�on of bank records and iden�fica�on of par�cular accounts would implicate foreign bank secrecy laws, and that in any case, such a produc�on may not be worthwhile because CAB had not retained any transac�on records prior to 2009. To simplify maters, Plain�ffs’ counsel proposed that CAB simply provide the number of accounts it held during the relevant period for individuals or en��es named in
the Second Amended Complaint, as well as those involved in the Atacks. Plain�ffs reasoned that if CAB had very few such accounts, Plain�ffs might decide it was not worthwhile to engage in briefing on bank secrecy to compel produc�on. A�er discussion, the Court agreed this was an efficient approach and directed the par�es to proceed. Accordingly, Plain�ffs provided CAB with two lists: the first included individuals and en��es named in the Second Amended Complaint, and the second included alleged Hamas opera�ves iden�fied in Plain�ffs’ produc�on as related
to the Atacks. When CAB ul�mately searched the names from Plain�ffs’ lists to determine how many such accounts CAB held during the relevant period, the search returned 66 accounts – 57 from the first list and 9 from the second list. (See Declara�on of Khalid Mahmoud Al Qassem (“Qassem Decl.”), ECF No.291-1, at ¶¶ 7-9.) CAB also clarified that although it was not in possession of transac�on records prior to 2009 (other than a limited number already produced
to Plain�ffs), CAB did possess account-opening documents for those accounts that remained open a�er 2009. (Id. at ¶ 7.) Of the 66 accounts CAB iden�fied from Plain�ffs’ lists, 34 remained open as of 2009. (Id. at ¶ 10.) This means that there will be account-opening documents for 34 of the accounts and likely minimal other records given the age of the records sought and CAB’s representa�ons regarding the non-existence of transac�on records preda�ng
2009. The par�es subsequently appeared for a discovery conference before the undersigned in May of 2024, and Plain�ffs represented to the Court that absent further issues, Plain�ffs did not intend to move to compel the bank records. However, in July of 2024, Plain�ffs took the deposi�on of Khalid Mahmoud Al Qassem, CAB’s Deputy Chief Execu�ve Officer, and during the deposi�on, defense counsel instructed Mr. Al Qassem not to answer several ques�ons rela�ng
to CAB accountholders, asser�ng that answering such ques�ons would require that Mr. Al Qassem violate foreign bank secrecy laws. Plain�ffs therea�er requested that CAB produce all documents and informa�on it possessed rela�ng to the 66 accounts CAB had iden�fied from Plain�ffs two lists and CAB declined to do so. On October 10, 2024, Plain�ffs filed the instant Mo�on to Compel, seeking the produc�on of all informa�on and communica�ons CAB possesses related to the 66 accounts. (ECF No. 289.) CAB opposed the Mo�on to Compel on
November 14, 2024. (ECF No. 303.) LEGAL STANDARD Plain�ffs bring claims against CAB pursuant to the An�-Terrorism Act (“ATA”) as amended by the Jus�ce Against Sponsors of Terrorism Act (“JASTA”), 18 U.S.C. § 2333(d), which provides a
civil cause of ac�on for damages to any “na�onal of the United States injured in his or her person, property, or business by reason of an act of interna�onal terrorism, or his or her estate, survivors, or heirs....” 18 U.S.C. § 2333(a). Liability may be imposed on “any person who aids and abets, by knowingly providing substan�al assistance, or who conspires with the person who commited such an act of interna�onal terrorism.” 18 U.S.C. § 2333(d)(2). “Aiding and abe�ng
liability under the ATA requires that: ‘(1) the party whom the defendant aids must perform a wrongful act that causes an injury, (2) the defendant must be generally aware of his role as part of an overall illegal or tor�ous ac�vity at the �me that he provides the assistance, and (3) the defendant must knowingly and substan�ally assist the principal viola�on.’” Miller v. Arab Bank, PLC, No. 118CV2192HGPK, 2023 WL 2731681, at *3 (E.D.N.Y. Mar. 31, 2023).
The Federal Rules of Civil Procedure “provide the court with authority to issue discovery orders requiring the disclosure of informa�on protected by foreign bank secrecy laws.” Linde v. Arab Bank, PLC, 463 F. Supp. 2d 310, 314 (E.D.N.Y. 2006) (ci�ng Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 204-06 (1958)); see Societe Nationale Industrielle Aerospatiale & Societe de Construction d'Avions de Tourisme v.
U.S. Dist. Ct. for the S. Dist. of Iowa, 482 U.S. 522, 544 n.29 (1987) (A foreign jurisdic�on's bank secrecy laws “do not deprive an American court of the power to order a party subject to its jurisdic�on to produce evidence even though the act of produc�on may violate that [foreign] statute.”). The party opposing produc�on on the basis of foreign law, in this case, CAB, bears the burden of demonstra�ng that produc�on should be denied. See Miller, 2023 WL 2731681, at *9. To meet that burden, CAB must describe the relevant provisions of the foreign law, the basis
for its relevance, and the applica�on of the foreign law to the facts of the case. Id. (internal cita�ons omited). Here, CAB has established, and Plain�ffs do not dispute, that the discovery sought by Plain�ffs would require viola�on of the bank secrecy laws of Jordan and Pales�ne. (See Declara�on of Lubna Katbeh, ECF No. 301 and Declara�on of Aiman Y. Odeh, ECF No. 302 (expert reports describing bank secrecy law of Jordan and Pales�ne respec�vely and explaining
how produc�on of records requested by Plain�ff would require viola�on of such laws).) Once the party opposing produc�on has demonstrated that the requested documents are in fact protected by foreign law, the Court undertakes a comity analysis. Laydon v. Mizuho Bank, Ltd., 183 F. Supp. 3d 409, 413 (S.D.N.Y. 2016). In Société Nationale Industrielle Aérospatiale, the Supreme Court held that in the context of a request for foreign discovery, “interna�onal comity” requires a “par�cularized analysis of the respec�ve interests of the
foreign na�on and the reques�ng na�on[.]” 482 U.S. at 543–44. When evalua�ng whether to order the produc�on of informa�on or documents in contraven�on of foreign law, courts consider the following factors, drawn from the Restatement (Third) of Foreign Rela�ons Law § 442: (1) the importance to the inves�ga�on or li�ga�on of the documents or other informa�on requested; (2) the degree of specificity of the request; (3) whether the informa�on originated in the United States; (4) the availability of alterna�ve means of securing the informa�on; 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 the important interests of the state where the informa�on is located. Wultz v. Bank of China Ltd., 910 F. Supp. 2d 548, 552–53 (S.D.N.Y. 2012). Courts in the Second Circuit also consider: (6) the hardship of compliance on the party or witness from whom discovery is sought; and (7) the good faith of
the party resis�ng discovery. Id. The fi�h factor, considera�on of the interests of the United States and the foreign state, is generally deemed to be the most important factor. Bartlett v. Societe Generale de Banque au Liban SAL, No. 19-CV-7 (CBA) (TAM), 2023 WL 2734641, at *10 (E.D.N.Y. Mar. 31, 2023). Accordingly, the Court will consider this factor first. DISCUSSION
1. Interests of the United States and the Foreign State Plain�ffs contend that the U.S. interest in comba�ng terrorism outweighs a foreign na�on’s interest in shielding financial records from disclosure in federal court proceedings. Indeed, courts in the Second Circuit that have analyzed this ques�on have agreed that “[w]hen the U.S. interest in fully and fairly adjudica�ng maters before its courts is combined with its interest in comba�ng terrorism, the U.S. interest is elevated to nearly its highest point, and
diminishes any compe�ng interests of the foreign state.” Wultz, 910 F. Supp. 2d at 559 (internal quota�ons omited); Bartlett, 2023 WL 2734641, at *11 (same). CAB argues that even if comba�ng terrorism is a strong U.S. interest, produc�on of the records Plain�ffs seek here is unlikely to advance such interests. CAB dis�nguishes the Wultz case by asser�ng that Wultz involved primary liability under the ATA (i.e. asser�ons that the bank provided direct support to terrorist ac�vi�es), whereas the present case involves a
secondary liability JASTA claim, and therefore, according to CAB, Plain�ffs have not shown how the produc�on of Plain�ffs’ requested records would combat terrorism. But CAB ignores Plain�ffs’ cita�on to several cases that did include allega�ons of secondary liability where courts found that it is “indisputable that the United States has a strong interest in comba�ng terrorism and compensa�ng vic�ms of terrorist atacks” and denied the defendant bank’s mo�on for a
protec�ve order on bank secrecy grounds. Miller, 2023 WL 2731681, at *12; Bartlett, 2023 WL 2734641, at *11 (observing that Congress’ purpose in enac�ng JASTA was to provide U.S. na�onals with “‘the broadest possible basis ... to seek relief against persons, en��es and foreign countries’ that have provided material support to terrorists.”) (internal cita�ons omited). To the extent Plain�ffs’ requested records reveal that CAB facilitated payments to terrorist
organiza�ons or individuals involved in terrorism, the produc�on of such records would further the U.S.’s interests in compensa�ng vic�ms of terrorist atacks. Further, and more fundamentally, that this case involves aiding and abe�ng rather than direct liability is not a persuasive argument on the “na�onal interest” factor of the Aérospatiale analysis. JASTA aims to provide a cause of ac�on against persons or en��es “that knowingly or recklessly contribute material support or resources, directly or indirectly, to persons or organiza�ons that pose a
significant risk of commi�ng acts of terrorism that threaten the security of” U.S. na�onals or na�onal security. JASTA § 2(a)(6). Thus, JASTA reflects a strong na�onal interest in comba�ng terrorism by exposing even those who indirectly substan�ally assist a terrorist organiza�on or conspire with a person who commits acts of terrorism. See 18 U.S.C. § 2333(d)(2). This broad liability combats terrorism by discouraging people and en��es from helping others commit acts of terrorism. Requiring produc�on of bank records that might reveal funding sources or
indicators that the person or en�ty was engaged in terrorist ac�vi�es is consistent with the goals of JASTA and the na�onal interest in comba�ng terrorism. CAB further argues that the U.S.’s interest in the produc�on of the banking records “pales in comparison” to Jordan’s and the Pales�nian Authority’s interest in the enforcement of their financial privacy laws. CAB asserts that the sovereign’s understanding of na�onal interests
should control the inquiry, ci�ng to amicus briefs filed by the U.S. and Jordan in Linde before the U.S. Supreme Court in which both na�ons asserted that sanc�oning a Jordanian bank for not complying with a discovery order threatened the vital U.S. interest in maintaining a close rela�onship with Jordan. But these asser�ons by the U.S. and Jordan were made in the context of opposing sanc�ons ordered against the bank for failure to comply with the discovery orders, rather than with the discovery orders themselves. See Miller, 2023 WL 2731681, at *12.
The Court certainly recognizes that enforcing bank secrecy is an important interest. However, that interest is outweighed by the U.S.’s vital interest in comba�ng terrorism and compensa�ng vic�ms of terrorist atacks. See Linde, 463 F.Supp.2d at *315 (holding that although maintaining bank secrecy is an important interest of the foreign jurisdic�on, that interest “must yield to the interests of comba�ng terrorism and compensa�ng its vic�ms” and
observing that, as a member of the Middle East and North Africa Financial Ac�on Task Force, Jordan has expressly adopted a policy not to rely on bank secrecy laws as a basis for protec�ng informa�on rela�ng to money laundering and terrorist financing.); Linde v. Arab Bank, PLC, 706 F.3d 92, 112 (2d Cir. 2013) (dismissing appeal and holding the district court “appropriately recognized the important U.S. interests at stake in arming private li�gants with the ‘weapons available in civil li�ga�on’ to deter and punish the support of terrorism.”); Miller, 2023 WL
2731681, at *13 (denying defendant’s mo�on for a protec�ve order on bank secrecy grounds and observing that Congress’s decision to amend the ATA to encompass aiding-and-abe�ng liability “re-emphasizes the United States’ commitment to comba�ng interna�onal terrorism.”). It is also worth no�ng that Jordan has shown an interest in comba�ng terrorism and, indeed, has partnered with the U.S. in efforts to root out and prevent terrorism. It is also a member of
the Middle East and North Africa Financial Ac�on Task Force and has taken steps to counter the financing of terrorism. See Linde, 463 F. Supp. 2d at 315-16; Country Reports on Terrorism 2022: Jordan, U.S. Dep’t State, htps://www.state.gov/reports/country-reports-on-terrorism- 2022/jordan/ (last visited February 13, 2025). The Pales�nian Authority is not a recognized state and its interests are not accorded the same level of deference as “states” in the comity analysis. Linde, 463 F. Supp. 2d at 316.
Accordingly, this factor weighs in favor of produc�on. 2. Remaining Factors a. The Information’s Importance to the Litigation and The Degree of Specificity of the Request1
Plain�ffs seek produc�on of all informa�on and documents, including know your customer documents, related to the 66 accounts CAB iden�fied from the two lists provided by Plain�ffs. Plain�ffs contend that the importance of the requested documents to the li�ga�on is self-evident because the documents relate to accounts CAB may have held for Hamas. Plain�ffs further argue that the records sought are highly specific as they correspond to accounts CAB has already acknowledged to holding, all of which are associated with either terrorist ac�vity as described in the Second Amended Complaint, or as iden�fied in Plain�ffs’ produc�on. CAB
1 The Court considers these factors together because the par�es make overlapping arguments that relate to both. responds that a conclusory asser�on that the importance of the records is “self-evident” fails to show that the records are cri�cal to li�ga�ng this ac�on.
In order to succeed on its aiding and abe�ng claim, Plain�ffs must demonstrate that CAB was “generally aware” that its customers or account transfers were �ed to terrorist ac�vity. While CAB argues that the existence of any par�cular account would not render a bank liable for aiding and abe�ng terrorism, cumula�ve evidence showing CAB held many accounts for individuals known to be involved in terrorist ac�vity may tend to demonstrate CAB’s general
awareness, par�cularly if accounts were maintained open a�er the accountholders were designated as foreign terrorist organiza�ons or iden�fied in other ways to CAB officers as being involved in Hamas terror ac�vi�es. See Miller, 2023 WL 2731681, at *5 (holding that the bank records sought by plain�ffs were cri�cal to establishing that the defendant bank was aware that either its customers or the transfers it was processing were �ed to terrorism). Mr. Al Qassem
stated in his declara�on that although CAB does not possess transac�on records prior to 2009 (other than documents already produced to Plain�ffs), CAB is in possession of account-opening documents for accounts that remained open a�er 2009. (Qassem Decl., ECF No.291-1, at ¶¶ 7, 10.) Of the 66 accounts CAB iden�fied from Plain�ffs’ first and second lists, 34 remained open as of 2009, while the remaining closed before 2009. (Id. at ¶ 10.) Mr. Qassem further stated that for accounts that were closed before 2009, CAB would only possess the dates on which the
account was opened and closed. (Id. at ¶ 7.) Thus, while the Court acknowledges that the records CAB has retained related to the 66 accounts are limited, such records are s�ll important to the li�ga�on because they may tend to show CAB’s general awareness that it was providing financial services to individuals or en��es involved in terrorism. See Miller, 2023 WL 2731681, at *5 (finding that records such as account opening documents could shed light on what the bank did or did not know about its customers).
CAB cites Bartlett and asserts that the court in that case “denied all requests for discovery of records more than one year a�er the last alleged atack in that case.” But, in Bartlett, the plain�ffs sought discovery concerning 687 individuals and en��es, 592 of which were listed in the complaint. Bartlett, 2023 WL 2734641, at *7. Given the breath of such requests, the Bartlett court concluded that discovery regarding nine years of records a�er the
alleged terrorist atacks was overbroad. The request for records in the present case is much narrower than in Bartlett, and concerns only 66 accounts CAB has already acknowledged to holding, 57 of which correspond to individuals or en��es named in the Second Amended Complaint. See also Miller, 2023 WL 2731681, at *11 (holding that the records, which sought informa�on as to over 400 individuals/en��es, were sufficiently tailored because they were
specific to “named individuals whom Plain�ffs have iden�fied as terrorists, martyrs, opera�ves, FTO leaders, agents, or the family members of these individuals, and charitable organiza�ons and ins�tu�ons that are or are linked to terrorist organiza�ons.”). Moreover, CAB has represented that there will be minimal responsive documents, meaning that responding will not be unduly burdensome. Accordingly, these factors weigh in favor of produc�on.
b. Origin of the Information The par�es do not dispute that the requested records originated outside the United States, which weighs against produc�on. See Wultz, 910 F. Supp. 2d at 556. c. Availability of Alternative Means Plain�ffs argue that the only conceivable alterna�ve means of obtaining the requested records is through the accountholders themselves, who are unlikely to s�ll possess the records
a�er 20 years, and even if they had kept them, would be unlikely to turn over such records for fear that doing so would expose them to retalia�on. CAB asserts in its briefing that it has offered to submit leters rogatory to Jordanian and Pales�nian regulators reques�ng authoriza�on to produce the records. But during a recent Case Management Conference, defense counsel conceded that the leters rogatory process is typically ini�ated once a court had already ordered
produc�on, rather than before the court has ruled on bank secrecy issues. CAB cites to Bartlett and Miller, sugges�ng that alterna�ve means were permited in those cases. But the court in Bartlett overruled the defendant’s foreign bank secrecy objec�ons and subsequently gave the defendant an opportunity to submit leters rogatory before providing a deadline for responding to Plain�ffs’ requests for produc�on. 2023 WL 2734641, *15. In Miller, the court did issue leters rogatory to Jordan, Lebanon and the Pales�nian Na�onal
Authority before ruling on defendant’s mo�on for a protec�ve order on bank secrecy grounds, but the foreign governments declined to grant such authoriza�on. Indeed, given both par�es’ representa�ons at the recent Conference, the Court is skep�cal that alterna�ve means will result in produc�on, par�cularly in the absence of a court order. Accordingly, this factor weighs in favor of produc�on. d. Hardship of Compliance CAB states that produc�on of the bank records would expose CAB to civil suits by its customers, as well as criminal and civil penal�es including fines and poten�al revoca�on of its
banking licenses. Plain�ffs assert that these purported consequences are purely specula�ve. Although CAB’s experts opined that the text of Jordanian and Pales�nian bank secrecy laws make clear that penal�es are possible, CAB does not cite to any instance in which CAB, or any other bank, was punished for complying with a discovery order from a U.S. court. Further, courts undertaking this inquiry have reached similar conclusions regarding the specula�ve nature of poten�al penal�es for produc�on of bank records. See Miller, 2023 WL 2731681, at
*13-14 (concluding that the bank’s cited consequences for producing records are “purely specula�ve”); Wultz, 910 F.Supp.2d at 559 (concluding that the hardship factor weighed in favor of produc�on because the bank had not produce evidence it had been “meaningfully sanc�oned” for complying with two previous U.S. court orders to produce documents in contraven�on of China’s bank secrecy laws); Laydon, 183 F. Supp. 3d at 425-26 (concluding
defendants had failed to establish they would actually suffer a hardship for complying with the discovery demands). CAB’s cita�on to Gill v. Arab Bank, PLC, 893 F. Supp. 2d 542 (E.D.N.Y. 2012), is inapposite, because in that case, the court was considering whether an adverse inference instruc�on was appropriate in light of the bank’s withholding of poten�ally relevant evidence, rather than considering bank secrecy objec�ons themselves.
Accordingly, this factor weighs in favor of produc�on. e. Good Faith As for good faith, Plain�ffs argue that CAB’s good faith is “ques�onable” because CAB previously represented to the Court that it had no relevant records prior to 2009 and has since
qualified that representa�on. For example, Mr. Al Qassem stated in his declara�on that CAB does in fact have account-opening documents for accounts opened prior to 2009, that remained open a�er 2009. (Qassem Decl. ¶ 7.) In response, CAB asserts that it has acted in good faith and simply seeks to comply with foreign law. Having reviewed the record and both par�es’ posi�ons, there is insufficient evidence to ascribe bad faith to CAB. See Wultz, 910 F.Supp.2d at 560 (declining to find bad faith even where
the defendant bank denied plain�ffs access to inspect relevant documents). Accordingly, this factor is neutral. CONCLUSION On balance, a�er considering the five Aérospatiale factors, as well as the two addi�onal factors of hardship and good faith, Plain�ffs’ Mo�on to Compel is granted and CAB’s bank
secrecy objec�ons are overruled. Because the Court has ruled that neither Jordanian nor Pales�nian bank secrecy laws are a bar to the discovery sought, CAB may now be given an opportunity to obtain permission to produce the requested records from the relevant foreign authori�es through leters rogatory. See e.g., Linde, 463 F.Supp.2d at 316 (concluding that now that the court had overruled the defendant’s bank secrecy objec�ons, the defendant should be given a specified �me period to attempt to obtain permission to disclose the records from relevant government authorities).? Accordingly, CAB shall have until August 15, 2025 to obtain permission from Jordanian and Palestinian authorities and/or to produce the records related to the 66 accounts. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 289. SO ORDERED. Dated: February 14, 2025 KZ , tf, f i AKL New York, New York Kethavce Hf ‘ KATHARINE H. PARKER United States Magistrate Judge
? Although CAB has suggested it be permitted to seek waiver from individual accountholders, the Court finds that this process is not likely to bear fruit insofar as the accountholders are all being accused of being affiliated with Hamas. See Linde, 463 F. Supp. 2d at 315; Bartlett, 2023 WL 2734641 at *14. 15