Case of the Day: Ben Haim v. Doe

The Western Wall at dawn on Shavuot

The case of the day is Ben Haim v. Doe (D.D.C. 2023). Tamar Ben Haim, who lives in Jerusalem, alleged that she was assaulted by an unknown, off-duty agent with the Secret Service who was on the advance team preparing for President Biden’s visit to Israel in 2022. Following the alleged assault, she claimed, the Israeli government had the agent in custody but released him. Ben Haim brought an action in Washington against a John Doe defendant and then sought issuance of a subpoena to the Secret Service and issuance of a letter of request asking the Israeli authorities to take evidence from the Israeli police.

The court granted leave to serve the subpoena on the Secret Service. This seems sensible, although getting a federal law enforcement agency is not always simple in light of the so-called Touhy regulations, which requires administrative approval before the agency can respond to a subpoena.

Titian's painting of Sisyphus carrying the stone up the hill.
Letters of request embody comity.

The court also approved issuance of the letter of request after an Aerospatiale analysis. It may seem hopeless, but I want to reiterate my view that it makes no sense to go through the Aerospatiale factors when deciding whether to issue a letter of request for discovery from a non-party. The point of Aerospatiale is to help courts decide whether foreign parties should have to respond to US discovery requests or whether the party seeking evidence should have to resort first to the Evidence Convention, as a matter of comity. If you start by saying that you want to serve a letter of request, which is, after all, often the only way to obtain discovery from a non-party abroad, there is no comity decision to be made. Letters of request embody comity.

With that said, I wonder whether it makes much sense to pursue both of these avenues at once. Maybe it is in the interest of efficiency to get both methods approved at once and then see which one get results quickest. But on the other hand, if you really can get the evidence you seek in the United States, is there a strong reason to start proceedings abroad?

2 responses to “Case of the Day: Ben Haim v. Doe”

  1. Ted! We star in your amazing Blog again (you previously wrote about another case of ours, Ambar v. Federal Republic of Germany). Keep up the amazing work. Best, Noam

    1. Well, you are doing cool work! I think this case also has the potential for some interesting issues if the government invokes the Westfall Act (I noted the allegation that the agent was off-duty). I’ll keep my eye on this.

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