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Discovery Sanctions Recommended in "Are You a Jew? … Are You a Zionist?" Case
The factual allegations, from a Sept. 2025 decision in the case by Judge Susan Illston (N.D. Cal.) (the case is Radice v. Jerusalem Boxing Club, LLC consolidated with the federal government's U.S. v. Harara):
The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."
According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.
The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside." …
On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."
And now from Judge Thomas Hixson's Report and Recommendation yesterday:
There is no dispute that Defendant Abdulrahim Harara violated at least six discovery orders. Motion at 4-7 ("Harara has flouted at least six discovery orders," and enumerating the violations); Opp. at 7 ("But the question on this motion is not whether any order was violated; it is whether the record as a whole shows the kind of deliberate, deceptive obstruction that makes a fair trial impossible and justifies ending the case without one.")….
The real issue is what remedy the Court should impose for the serial violations of its discovery orders. The impact of Harara's conduct basically falls into three buckets: documents were produced late that should have been produced earlier; some document productions are incomplete; and there has been a wholesale failure to produce email. But having reviewed the voluminous evidence submitted in support of Radice's motion for sanctions, the Court thinks truth is available to the parties, and they should go ahead and have a trial on the existing record.
Harara's biggest failure in discovery is the nonproduction of email, and he does not have a good excuse. In many cases the total failure to produce email would justify terminating sanctions or at least adverse inference instructions.
But the Court is skeptical that this is such a case. The relevant events are alleged in-person refusals to serve Radice and another individual because they are Jewish. In other words, the relevant events did not occur by email. Before email existed, public accommodation discrimination claims like this were tried the old fashioned way: The participants in the alleged events testified, and the trier of fact decided who to believe. That option is still available here.
Email is still relevant, of course, because it could contain statements about what happened, or have evidence of the defendant's allegedly prejudicial intent. But here a lot of that type of evidence was produced in the form of Harara's text messages and social media feeds and other electronic records. These include a statement that seems to be by Harara that seems to say he throws pennies on the ground when Jews walk by; the coffee shop menu and outdoor signage with inverted red triangles, which Radice alleges is a symbol used by Hamas to mark Israeli targets in propaganda videos; the apparent introduction on the one year anniversary of the October 7 attack of a juice item named for a mastermind of the attack; a video of Harara telling a Jewish customer to leave because he had "a violent hat," referring to the Star of David on the hat; and a repost by Harara to his X account bearing the "Bay Area" screen name of a November 2, 2024 post calling that same Jewish customer "a genocidal, bottom dwelling Zionist scum" who "should be kicked out of every public establishment not just Palestinian owned ones!" There are also text messages that replicate the kind of thing a plaintiff would dream of finding in a defendant's emails—and certainly at trial Radice and the United States will argue these texts are strong evidence of liability.
Radice is certainly of the view that he has uncovered good evidence, even if it was produced later than it should have been, and even though it does not include email. See Motion at 15 ("The 6134 Bates-labeled pages and 2474 native files that Harara produced on or after August 7 include inflammatory documents that Harara willfully withheld until after discovery closed."); id. ("For example, a January 3, 2025 JCH Instagram post shows JCH advertising for sale a t-shirt featuring the Jerusalem Coffee House name ringed by flags with the emblem of Hamas, a designated terrorist organization dedicated to violence against Jews and Israelis."); id. ("His Instagram direct-messages contain both antisemitic tropes and antisemitic slurs.").
With all this evidence, can it really be said that Harara's failings in discovery have prejudiced Plaintiffs to such an extent that a meaningful and fair trial is no longer possible? That adverse inferences are needed because there is not enough evidence for the trier of fact to reliably draw conclusions about what happened?
No. These cases are about whether a coffee shop committed discrimination, and Harara has produced enough documents that Radice and the United States have what they need to go to trial. Even with the nonproduction of email, it is not true that discovery failed or that truth cannot be ascertained. The public policy in favor of deciding cases on the merits applies here.
Accordingly, the Court RECOMMENDS that the district judge DENY the request for terminating sanctions because there's just no need or basis for it. The Court DENIES the request for adverse inferences because it is essentially a request for a directed verdict. Each side should put on their case at trial, and truth should be determined in the normal way. There is no reason for the Court to stack the deck.
But that doesn't mean Harara escapes sanctions. He needs to pay for what he did. His serial violations of Court orders significantly drove up Radice's cost of litigating [the case]. Radice requests $166,500.50 against all Defendants. The entity Defendants have been in default during the period of time when Harara violated the Court orders, so are not the cause of Radice's increased legal expenses, and therefore will not be sanctioned.
Plaintiff's counsel's rates are reasonable. However, both the Benesch and ADL attorneys seek fees for work that preceded the violations of the Court orders, a problem that requires deducting about a third of the Benesch time and about a fifth of the ADL's time. That brings the total down to $118,000. In addition, even though Harara violated multiple discovery orders, it is also true that Plaintiff's counsel litigated [the case] with excessive ferocity. At times it seemed they were not just litigating a discrimination case but were out to destroy Harara. As a result their fees were excessive. The Court estimates that about half of the fees Radice incurred during the time when Harara was violating the discovery orders was due to the violations and the other half was for work that would have needed to be done anyway or that should not have been done at all because it was excessive. Accordingly, the Court SANCTIONS Harara in the amount of $59,000 and ORDERS him to pay that amount to Radice within 30 days.
In his opposition, Harara proposes some remedial measures. However, the Court will not adopt any of them. The proposal to remedy the lack of email production presupposes that Harara will have a lawyer to represent him. Opp. at 16 ("The full inbox Mr. Harara exported on September 3, 2026 will be reviewed by counsel, consistent with the Court's ruling that counsel rather than Mr. Harara conduct that review. That counsel will be either counsel Mr. Harara retains or volunteer limited-scope counsel appointed through the Court's Federal Pro Bono Project under General Order 25, to which Mr. Harara respectfully requests referral. Since his counsel withdrew, Mr. Harara has contacted lawyers and legal organizations and has not found a lawyer who will take his case."). However, Harara's inability to work cooperatively with two sets of counsel means this is an unrealistic proposal. And if no lawyer represents him, Harara's proposal contains no particular deadline by which emails would be produced. Opp. at 16 ("If counsel has not been retained or appointed within 30 days of the Court's order, Mr. Harara will file a status report every 14 days thereafter. In all events, the production under this paragraph will be complete within 90 days of the Court's order; if it is not, Mr. Harara will show cause why not, and the Court may then impose such further measures as it finds appropriate after notice and an opportunity to be heard.").
Harara's proposal to serve further interrogatory responses is highly unlikely to achieve anything. And there is no need for a further deposition of him; Plaintiffs' counsel can cross-examine him at trial….
