Law360, New York (December 21, 2015, 3:17 PM EST) -- Lawyers for Dubai Islamic Bank told a magistrate judge Friday that it likely wouldn’t be able to produce some information about its role in funding the Sept. 11 terrorist attacks because a fire in an offsite warehouse destroyed tens of thousands of records. Victims and family members of those killed when attackers flew planes into the World Trade Center and the Pentagon are pushing U.S. Magistrate Judge Frank Maas to force the bank to turn over paper transactional records including those related to accounts opened by specific al-Qaida leaders and have moved to compel cooperation with their discovery demands. The bank, which is largely owned by the government of Dubai, has also refused to turn over documents related to its Sharia Supervisory Board, saying they’re irrelevant to the case.
In “the spirit of openness and complete candor,” Steven T. Cottreau of Clifford Chance US LLP informed Judge Maas in a letter that an August 2014 fire at an InfoFort warehouse in Dubai may affect production of the requested records.
“While we are still assessing the impact of the InfoFort fire, we believe that many — but not likely a majority — of paper transaction records at issue in the motions to compel were destroyed in the fire,” the letter said. “Many of DIB’s records in offsite storage survived because they were stored at another InfoFort warehouse that was not affected by the fire.”
Jerry S. Goldman of Anderson Kill PC, a lawyer for the plaintiffs, told Law360 Monday that he was shocked to see the fire come to light about 16 months after it occurred, especially since the initial document requests were made years ago.
"We're surprised and dismayed that at this stage in the litigation, we're just finding this out now," Goldman said. "I would've thought they would've looked at these documents many years ago."
The bank has already produced bank account statements for all accounts identified using a search that both sides agreed upon, but the parties agreed to postpone and address on a case-by-case basis the issue of whether the bank would produce paper records like deposit and withdrawal slips related to the statements, the bank said.
Despite this alleged agreement, the plaintiffs never requested records on a case-by-case basis but instead moved to compel production of all such records for every listed transaction, the bank said. The bank has otherwise objected to the discovery requests, saying they’re too broad, vague and cumbersome.
While assessing how much work production of all the paper records would be, the ’s lawyers learned that InfoFort, which stores records for a number of top companies in the region, suffered a fire at one of its warehouses that destroyed boxes of bank records and those of other customers, the bank said.
According to InfoFort’s incident report, which relies on the official Dubai police report, the most likely cause may have been an electrical fault in a tube light. The police report did not find that human fault or negligence contributed to the fire, the bank said. All records in the warehouse were destroyed.
The fire occurred at InfoFort’s facilities in Jebel Ali, Dubai, United Arab Emirates, on the evening of Aug. 27, 2014, a statement from InfoFort’s parent, Aramex, said at the time. No one was injured as the fire spread across two to three warehouses and was not contained for nearly four days, according to Emirates 24/7, citing a Dubai Civil Defense source. Because of concerns about the structural integrity of the buildings, no one could enter them to fight the fire, so water was dropped from above, the source said.
The bank continues to withhold information about the accounts of at least eight al-Qaeda figures and others related to the Taliban, the plaintiffs say, arguing that the bank has refused to cooperate with any of their requests.
The complex and long-running wrongful death and personal injury multi-district litigation was launched in December 2003 against dozens of defendants, including the bank, which is accused of directly channeling money to al-Qaida with full knowledge that the organization intended to attack the U.S. The bank lost its 2010 dismissal bid but secured dismissal of some claims.