RABBI MENDEL HERSHKOP
BROOKLYN, NEW YORK 11225
December 30, 1998
Beth Din of Crown Heights
788 Eastern Parkway
Brooklyn, New York 11213
Attention: Rabbis Marlow, Osdoba, and Mangel
Re: Machne Menachem v, Mendel Hershkop, et al.
United States District Court
Eastern District of New York
Case No. 97 CV 2550
Beth Din’s Refusal to Comply with Subpoena/Contempt Motion
Dear Rabbis Marlow, Osdoba, and Mangel:
I am very distressed to be in the position of having to write this letter to you, but the fact is that even at this late date you are still refusing to fully comply with the lawful subpoena of a United States Federal Court, which subpoena only sought the materials in your possession concerning the lawsuit brought against us by Spritzer and Schreiber. This should have presented no problem to you if you were neutral and impartial Dayanim (judges under Jewish law). It should have been a simple matter to comply. But apparently, you have decided to make this as difficult as possible. However, aside from the fact that your conduct in this discovery matter brings no honor or credit to the Beth Din (and instead brings shame and discredit to you and the Beth Din), you surely must know that your continued obstinacy and recalcitrance will eventually give way in the face of the Federal Court’s power to punish you for Contempt of Court by fine, imprisonment or both.
We are seeking the P’sakim (= Beth Din’s rulings), the tapes of all proceedings before you, and any and all documents used or presented to you or in any way involved in the proceedings before, you, that are connected to the lawsuit brought by Spritzer and Schreiber against me and the other defendants herein. What you have turned over to date is so woefully inadequate that it hardly qualifies as even a partial compliance. A long list of the reasons why the material you turned over is not in compliance with the subpoena and the direct instructions of the Federal Court Judge can be found at pages 3 to 5 of this letter.
However, before going into the inadequacies of your discovery material, it would be useful to review the situation to date.
It is noteworthy that while you have been so recalcitrant and difficult with us, you have had no problem cooperating with and even assisting the plaintiffs Spritzer and Schreiber. There is a great deal of evidence that at every turn you have been supplying Spritzer and Schreiber with every document they or their attorneys requested, and even preparing new documents for them when they wanted such documents. (See e.g., the Beth Din’s letter/response, dated June 20. 1997, to a request by Peretz Bronstein, Esq., – the attorney for both Spritzer and Schreiber and also the attorney for the Beth Din).
On the other hand however, you have shown great reluctance to turn over to us documents that are essential to our case and to which we are entitled. Aren’t you concerned this difference in treatment gives an appearance (and a very strong appearance, I might add) of favoritism, partiality, bias, and prejudice for one side and against another? Aren’t you concerned that by withholding documents and other materials you will making it even more plain to the Court that you are trying to protect Spritzer and Schreiber from the damaging results to them of having this evidence in full view. [By the way, I am curious who, if anyone, issued a Heter (=permission) to Schreiber and Spritzer to commence and continue a lawsuit against us, when in this situation it was and still is plainly against the Halacha to do so?]
Now even without a subpoena the Halacha (and plain common sense) requires you to turn over to us the documents and tapes we have requested. It is elementary fairness and good law in any legal system worthy of the name that the decisions and rulings of a court and the materials used by the court in reaching its decisions should be open to the inspection of the parties affected. Certainly then, it is appropriate for a Beth Din that claims to follow the Divine and perfect laws of our Torah, that you should release these materials to us. Nevertheless, for reasons you have never explained to me or any of the other defendants, you obstinately refuse to give us these materials.
Although the defendants in this lawsuit requested these documents more than a year and a half ago, (in fact by a hand delivered written request to the Beth Din,) that request went completely unheeded. As the saying goes “m’ken redden tzu a vant” (“one can talk to a wall” – a wall would have paid us more attention than you did – certainly not less). When we saw that you would not turn these over voluntarily, and inasmuch as we had to use all proper means available to us to defend ourselves against an improper lawsuit, we were forced to serve you with a subpoena. According to that subpoena you were required by law to turn over the appropriate materials by July 31, 1998.
But incredibly, July 31 came and went and you paid the subpoena no attention whatsoever. Your flouting of the United States Federal Court showed unbelievable chutzpa towards and unconcern for the laws of the country. This itself was a great “Chillul Hashem” (= desecration of G-d’s Name). Incredibly, on July 31 you felt no need to explain to us or to the Federal Court why you did not comply; you made no calls or sent any letters to us then; there were no excuses or other explanations, no requests for additional time or some other reason to seek a postponement. What we heard from you was:…………., nothing, silence.
At that point, you were in effect acting like an immature child making faces at us, as if saying “you can’t make me” and daring us and the Court to force you to comply. Our object was only to obtain our discovery materials, but instead you, as a Beth Din, were playing games. Seeing no choice, we made a motion to have you held in Contempt of Court for your continuing refusal to comply with a lawful and proper subpoena. As the return date of that motion drew close, you suddenly paid this matter some attention. You selected an attorney to represent you – who else but Peretz Bronstein (H!) – the very attorney who represented the plaintiffs Spritzer and Schreiber!!! If there was ever any question about your lack of impartiality in this case, the selection of Peretz Bronstein laid that question to rest.
Your attorney, Peretz Bronstein, attempted by every means possible to avoid complying with the subpoena, and in a letter to the Court made a large number of baseless arguments to avoid compliance: the subpoena was invalid, the service was improper, etc., and even (an obviously false representation) that you had no need to comply since you had already “complied” by supposedly delivering the materials to the Court on July 31!! In Court and facing the possibility that you would be held in Contempt, the same arguments were repeated. However, the Court rejected all of these arguments and instead confirmed the validity of the subpoena and instructed you to comply. Your representative indicated to the Court that the Beth Din would comply; but the Beth Din still required time to prepare the (presumably voluminous) materials sought and so was given several weeks to prepare and deliver the papers herein. [Although it is unclear why time would be needed to prepare the materials when Peretz Bronstein claimed that the Beth Din had already prepared and delivered the same materials to the Court on the previous July 31. Curiously, even though it was 3 months after you had received the subpoena and more than a year since our initial request, several more weeks were still needed to assemble these same materials!]
You were still facing a potential finding of being in Contempt of Court when some weeks later your representative finally delivered to us in Court a set of papers – an incomplete and unorganized set of 78 pages – which was very far from what was sought. It is remarkable that you are willing to risk Contempt of Court by making as flimsy a showing as you did. Inasmuch as you continue to withhold documents and materials essential to our case, we intend to bring the details of your deliberate flouting of the Federal Court’s authority to the attention of the Judge herein.
The papers you delivered to us in Court are incomplete and not in compliance for the following reasons:
- You have withheld from us the 20 – 25 tapes of the proceedings before the Beth Din. (It must be remembered that all proceedings before the Beth Din of Crown Heights were tape recorded, and in my estimation given the hours involved~ there are approximately 20-25 such tapes. Yet the Beth Din has not delivered even one of these tapes to the Court, despite the subpoena and despite the Motion for Contempt. Nor has the Beth Din felt obliged to explain the whereabouts of the tapes or otherwise explain or account for them. In Court your representative claimed the Beth Din was “looking” for the tapes, but has not reported to the Court about the progress of this supposed search. My brother Meir called the Beth Din’s secretary, Levi Shapiro, about 3 weeks ago, and spoke to Mr. Shapiro about these tapes. Mr. Shapiro acknowledged the existence of the tapes. Nevertheless, to date we have not received any of these tapes, nor have we been sent any written statement or explanation of the tapes whereabouts.)
- You have withheld from us essential material, such as the actual “rulings” of the Beth Din. (For example, among other “rulings” missing, the Beth Din’s “ruling” of the 16th of Sivan 5756 (-June 3, 1996) is missing from the material submitted.)
- You have withheld from us essential material, such as the correspondence between the Beth Din and various persons connected to this matter. (For example, among other correspondence missing, much of the correspondence between the Beth Din and Yosef Goldman, or the correspondence between the Beth Din and Levi Hartman, or with Shmuel Heber is missing from the material submitted Also, we have reason to believe that you have not supplied us with all the correspondence with Schreiber and Spritzer.)
- You have withheld from us essential material, such as the names of the persons whom the Beth Din permitted to make important and far reaching decisions concerning the Camp and upon which the Beth Din subsequently relied in making its own rulings; nor was a copy of the documents or tapes or other materials submitted to the Beth Din by these “outside” parties, but upon which the Beth Din relied in making its own decisions, submitted with the discovery material as it should have been. (For example, the Beth Din in its ruling of the 10th of Kislev .5756 (-November 21, 1996) explicitly stated that the Beth Din’s ruling concerning the “management” of Machne Menachem is relying upon a supposed vote of a set of un-named “educators” to whom they had referred this matter. The Beth Din should have submitted the names of those educators to us, together with a copy of any submission by these people to the Beth Din, including, any tapes or documents. Likewise if there were other submissions of documents, etc., by other non-parties which were considered or relied upon by the Beth Din in connection with Camp Machne Menachem, they too should have been submitted to us.)
- You have withheld from us essential material, such as many of the “Agreements to Arbitrate”, which you should have supplied to us in the discovery material. (That is, inasmuch as the Beth Din has documents by which some of the defendants and plaintiffs agreed to have their dispute(s) heard and decided by you – a copy of such documents should have been submitted to us.)
- The material sent to us in no order whatsoever, neither chronological nor organized on any other discernible principle. (Rather the papers are haphazardly thrown together with no sense whatsoever. There is no index, table of contents, itemized list, or any other means of grasping what is being turned over without a direct review of each of the separate items in the 78 pages.)
- There is no statement (which should be under oath and notarized) that the materials delivered are complete and accurate copies of the originals it purports to be a copy of. (I am advised that really the Beth Din was obligated to produce originals for our inspection and copying, except that we are willing to accept copies of the originals provided you supply a statement that the copies you have delivered are accurate and complete copies of the originals).
- You have failed to give a statement (which must be made under oath) that there are no other documents, tapes, or any of the other materials subpoenaed, in your possession, custody and/or control. (If for any reason you have given any of these materials to someone else or otherwise attempted to dispose of them. you are obligated to inform us and the Court. Please remember that any attempt to destroy evidence or to impede our discovery is a criminal offense and will be severely punished by the Federal Court.)
- I note that at the bottom of the papers delivered there is a sequence of numbers, e.g., MM1, MM34, etc… It appears that this is not on any original and therefore you must state who placed these numbers there and when this was done.
- Furthermore, there appear to be documents included which we fail to understand why or how these came to be part of the Beth Din’s file in this matter or why they were included in this discovery. Strangely, the actually relevant materials we requested you fail to supply, yet you are quick to include all kinds of irrelevant papers. The only method to this madness is that the irrelevant material seems to you or might give an appearance of being something you think detrimental to our case. This conduct itself suggests that you are working together with the plaintiff(s) and if so exhibiting the kind of prejudice and bias that is wholly inappropriate to a Beth Din and strongly suggests that the Beth din was not operating neutrally and fairly.
Please bear in mind that there is an outstanding motion to hold you in Contempt. The Court has not yet ruled on that issue. The Court is awaiting the results of our review to see if you have complied. Plainly, and as you well know, you have not. When this is brought to the Judge’s attention he has the authority and the power to hold you in Contempt and to levy stiff fines and imprisonment on all three of you and Mr. Shapiro. Unless all the materials sought are immediately produced together with the statements referred to above (viz., that the materials submitted are true, accurate, and complete, and that there are no other materials sought herein in the custody, control, or possession of the Beth Din) we will have no choice but to proceed in Court to have you punished for Contempt of Court. On January 4, 1999 we intend to bring this matter to the attention of Judge Glasser and (if necessary to re-new the motion for Contempt). I hope you will not continue to impede our discovery and instead will seek to cooperate with us.
I want to make this very simple: Stop playing these games and turn over to us immediately all the documents and materials related to or in any way connected to this matter.
cc: Judge I. Leo Glasser