Hi-
Some things to consider before the meeting:
POTENTIAL SCENARIOS:
IN ISRAEL:
Israel does not have a general blocking order statute not to allow discovery of its information abroad – does have specific laws which covers some of the categories of the information requested as information not subject to disclosure under Israeli law.
Our office has said if foreign court requests company to give information not subject to disclosure under Israeli law - and the information is disclosed by the company pursuant to the order of a foreign court- they would not press charges (I think this policy
should be reconsidered.
We also ratified Hague Service and Evidence Convention which allows any party that has litigation pending abroad- to serve the Central Authority with a Hague request which is transferred to the relevant agencies and can issue a response.
·
If a response is not issued by the Israeli authorities within a reasonable time; or if answer is not satisfactory (refusal) – party seeking information from Israel can challenge Israel's delay in giving
an answer AND/Or the information provided or not provided by filing a bagatz (BOC case example) – there is a high level deference of review
Overall I can think of (at least) four strategies [ for written discovery requests received by NSO]
1.
NSO receives the discovery request and asks the ISRAELI relevant authorities to relay its position as to whether it is permissible for it to relay this information under Israeli law. Israel letter – relayed
to the Court as part of the response of NSO not to respond to the discovery request – or certain sections of it
2.
NSO receives discovery request and asks Israel Court to opine
– if it can relay the documents under Israeli law - the Court could ask the position of the relevant government agencies and/OR the AG can issue its position on the substance of the request in an
עמדת יועץ. NSO and Israel request that the court decision be granted comity (perhaps through a dip note which would be relayed to the Court)
3.
NSO
request the Federal Court to Relay a Civil MLAT/Rogatory Request – which includes the full discovery request (including depositions) and asks the Central Authority to assist in compiling information/documents related to the State of Israel and who
will be allowed to testify and any limitations on the scope of their testimony due to privileges which exist in Israel.
In this context, Israel would give a response as to our position as to what is discoverable under Israeli law
& could assert a state secrets affidavit as part of this response
4.
Israel directly intervenes in the case by filing a motion to quash specific questions/depositions – which raise concern may lead to the disclosure of state secrets - this may require more than one motion
if the court decides to handle issues as they arise in the course of discovery (ie. first written questions….)
5.
Do we have concerns that information from
third party subpoenas – may also relay information which is sensitive from our perspective – not clear how we would protect this as we would not necessarily have knowledge of this information
מרלין מזל,
עו"ד
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