Shatsky v. The Palestine Liberation Organization
- Vyskocil
- 1:18-cv-12355
- U.S. District Court · Southern District of New York
- 4
In Shatsky v. Palestine Liberation Organization, Judge Vyskocil granted a request to let counsel use confidential discovery in related litigation under restrictions.
The ruling affects Arnold & Porter Kaye Scholer LLP, the lawyers seeking access to the confidential Shatsky discovery; the parties and counsel in the related litigation; the Shatsky parties and producing persons; and nonparty Fuad Ateyeh and potentially affected third parties. The materials may be used only in the related litigation and remain subject to the stated confidentiality and disclosure restrictions.
What happened
In Shatsky v. Palestine Liberation Organization, the court had allowed discovery about whether it could exercise authority over the defendants. The discovery included depositions and exhibits covered by a broad confidentiality order.
A law firm representing plaintiffs in related litigation asked to use those confidential materials in that litigation. The materials could be used only for that case, and the firm agreed to follow the existing confidentiality and disclosure restrictions. The parties and counsel for nonparty Fuad Ateyeh did not object.
Judge Mary Kay Vyskocil granted the request. The order allowed the related-case lawyers to access and use the materials under the same restrictions, including advance notice before disclosure and compliance with the court’s protective order.
The detailed version
- Shatsky v. The Palestine Liberation Organization · No. 1:18-cv-12355
- Vyskocil
- July 2, 2021
Background
The court had authorized jurisdictional discovery—discovery concerning whether the court has authority over the defendants—in February 2021. The parties then entered a stipulated protective order governing confidential documents and information. The discovery included depositions of nonparties and exhibits marked during those depositions.
The request concerned related litigation in the same district involving the same defendants and issues under the Promoting Security and Justice for Victims of Terrorism Act of 2019. Counsel for the plaintiffs in that related litigation sought access to confidential deposition exhibits produced in Shatsky. Some exhibits had been designated confidential by nonparty Fuad Ateyeh to protect the privacy interests of third parties.
Request and Standard
The request sought to modify the protective order so Arnold & Porter Kaye Scholer LLP could receive and use the confidential materials in the related litigation. The proposed modification limited use of the materials to prosecuting that litigation, allowed defense counsel in that litigation to use them for the defense, required seven days’ advance notice before disclosure to any person, and otherwise bound the lawyers to the protective order’s restrictions.
The opinion explained that a nonparty ordinarily seeks this type of modification through permissive intervention, which is a procedure allowing a nonparty to participate for a limited purpose. It also explained that modification may be appropriate when someone involved in genuine related litigation seeks access to protected discovery, particularly when the original order was a broad, stipulated protective order rather than one issued after a specific finding of good cause.
The court found that the protective order was broad and allowed future modification. The parties had stipulated to it without a prior good-cause hearing, and Arnold & Porter agreed to comply with the order’s restrictions and submit to the court’s authority for enforcement. These circumstances reduced the basis for treating the confidentiality designations as permanently unchangeable.
Ruling
The court granted the request to modify the protective order. The related-case counsel could access and use the confidential materials under the specified limitations, including use only for the related litigation, advance notice of disclosures, and compliance with the existing protective order. The order did not otherwise state a separate disposition using the word “intervention.”
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.