This is a decision of the Second Circuit Court of Appeals. Plaintiffs sued the Arab Bank, PLC, under the Anti-terrorism Act 18 USC 2333 and the Alien Tort Claims Act 28 USC 1350. The plaintiffs, who were victims of international terrorism, alleged that the bank provided support to terrorist organizations. The bank was sanctioned under Federal Rule 37(b), which provides for discovery sanctions, for failing to produce documents relevant to plaintiffs’ claims. The bank argued that it could not reveal the documents due to foreign banking secrecy laws.
The sanctions were jury instructions. The court explains: “The sanctions order takes the form of a jury instruction that would permit — but not require — the jury to infer from the Bank’s failure to produce these documents that the Bank provided financial services to designated foreign terrorist organizations, and did so knowingly. The order also precludes the Bank from introducing for the jury’s consideration certain evidence related to the undisclosed materials.”
The Second Circuit dismissed the appeal on the ground that the sanctions orders were not final and appealable. Why not? Because the orders were pre-trial. The case had not gone to trial. The bank argued that the orders were essentially final because it would pre-determine the outcome of the litigation. The court disagreed and refused to consider the appeal.
The Second Circuit also denied the bank’s writ of mandamus. A writ of mandamus is an effort to take an appeal before trial of a decision of the district judge. The court found that the issues presented, discovery sanctions, were not novel or significant.
Edward X. Clinton, Jr.