## Facts

- Consolidated civil actions arose from the September 11, 2001 hijackings and crashes into the World Trade Center, asserting wrongful-death, personal-injury, and property-damage claims.
- Plaintiffs alleged airlines, airport authorities, and security contractors (the “Aviation Defendants”) negligently failed to prevent hijackers from boarding and seizing the aircraft.
- By mid-2009, remaining cases were in pretrial discovery, and the court addressed discovery and evidentiary motions intended to shape upcoming trials.
- Aviation Defendants argued the attacks would have occurred regardless of any negligence in aviation security, emphasizing terrorist planning and alleged government failures to detect and stop the plot.
- To support that causation defense, Aviation Defendants sought (1) depositions of FBI agents about pre-attack investigations and (2) pretrial admissibility rulings for terrorism-related materials, including:
  - portions of the criminal record in the prosecution of Zacarias Moussaoui, including a “substituted testimony” summarizing interrogation responses attributed to Khalid Sheikh Mohammed (KSM);
  - the 9/11 Commission Report and related governmental reports; and
  - a media interview with Ramzi Binalshibh.
- The KSM “substituted testimony” was a non-verbatim, multi-author summary compiled over time from intelligence interrogations while KSM was in U.S. military custody; it had been used in Moussaoui’s sentencing phase by stipulation in that criminal case.

## Issues

1. Whether proportionality, sensitivity, and relevance justified compelling depositions of FBI agents concerning pre-9/11 terrorism investigations.
2. Whether the court should pre-admit, or broadly permit, reliance on the Moussaoui criminal record, the 9/11 Commission Report and related reports, and a media interview with an alleged terrorist leader.
3. Whether the KSM interrogation-summary “substituted testimony” was admissible in these civil trials under the Federal Rules of Evidence, including hearsay limitations and exceptions.

## Decision

- The court denied or sharply limited additional discovery aimed at deposing FBI agents, prioritizing trial readiness and avoiding expansion into sensitive government investigations.
- The court declined to allow broad use of terrorism-related materials to prove the defense “inevitability” theory, applying ordinary evidentiary constraints.
- The court excluded the offered KSM substituted testimony as inadmissible hearsay, finding the defendants had not established a basis to admit the multi-layer interrogation summary in this civil litigation.
- The court indicated the 9/11 Commission Report and related reports were not wholesale admissible; admissibility would depend on specific passages and applicable rules.
- The court rejected reliance on the Binalshibh media interview as evidentiary proof, citing hearsay and reliability concerns.

## Legal Principles

- Hearsay within hearsay is inadmissible unless each level satisfies a hearsay exception; layered intelligence-interrogation summaries raise multiple hearsay problems. (Fed. R. Evid. 801–805)
- A stipulation permitting evidence in a different proceeding does not establish admissibility in unrelated civil litigation; the proponent must satisfy authentication, reliability, and hearsay rules in the current case.
- Governmental investigative reports may fall within the public-records exception only to the extent they contain admissible factual findings and are sufficiently trustworthy; evaluative narrative is not automatically admissible. (Fed. R. Evid. 803(8))
- Even relevant evidence may be excluded where probative value is substantially outweighed by risks of jury confusion, unfair prejudice, undue delay, or wasting time. (Fed. R. Evid. 403)
- District courts have broad discretion to control discovery and pretrial proceedings to prevent disproportionate, collateral inquiries and to keep complex cases on track for trial.

## Conclusion

The court used its case-management authority to limit government-focused discovery and applied standard evidentiary rules to exclude a layered interrogation-summary attributed to KSM and other terrorism-related hearsay materials, while signaling that only narrowly supported portions of governmental reports might be admissible at trial.


In re September 11 Litig., 621 F. Supp. 2d 131 (S.D.N.Y. 2009)