Averbach v. Cairo Amman Bank

Background

The plaintiffs are victims and family members of victims of terrorist attacks that occurred between 2000 and 2004. They brought claims under the Anti-Terrorism Act, as amended by the Justice Against Sponsors of Terrorism Act, alleging that Cairo Amman Bank knowingly assisted Hamas-affiliated customers by providing banking services used in carrying out terrorist attacks.

The parties were conducting jurisdictional discovery. The plaintiffs served a subpoena under Federal Rule of Civil Procedure 45 on Arab Bank of New York, a nonparty, seeking records of transactions involving Arab Bank customers and Cairo Amman Bank customers. The subpoena listed 85 people and entities, each with between two and 22 spelling variations. It included people and entities named in the Second Amended Complaint as well as additional people and entities whom the plaintiffs said were affiliated with Hamas.

Arab Bank objected that searching for the additional names would not be relevant or proportional to the needs of the case. It stated that it had already conducted extensive searches in two other cases and found Cairo Amman Bank in only 32 transactions among 15,681 searches. Arab Bank also stated that its computer system could search for payors and payees but not for Cairo Amman Bank itself, and that it did not maintain a correspondent account at Arab Bank in New York or a nested correspondent account at Arab Bank in Ramallah for processing U.S.-dollar transfers.

Court’s analysis

Federal Rule of Civil Procedure 26(b)(1) permits discovery of nonprivileged information that is relevant to a claim or defense and proportional to the needs of the case. The party seeking discovery must show that the requested information is relevant and within the permitted scope. A party resisting a subpoena must show that the subpoena is unduly burdensome or provide another reason why production should not be required.

The court found that the plaintiffs had not demonstrated the relevance of searching for people and entities not listed in the Second Amended Complaint. The people and entities named in that complaint were connected to the allegations because they allegedly had accounts with or transacted business through Cairo Amman Bank. By contrast, the plaintiffs had no knowledge whether the additional names had any relationship to Cairo Amman Bank or Arab Bank. The court therefore found that requiring Arab Bank to search for those names would not be proportional to the needs of the case and described the request as a fishing expedition.

Disposition

Judge Katharine H. Parker denied the motion to compel except to the extent the subpoena requested that Arab Bank search for the people and entities specifically named in the Second Amended Complaint, along with reasonable spelling variations, and produce transactional records involving them. Arab Bank was ordered to conduct that search and produce the records by January 16, 2023. The clerk was asked to terminate the motion at ECF No. 150. The opinion did not decide the underlying merits of the plaintiffs’ claims against Cairo Amman Bank.