MEMORANDUM OPINION
Royce
C. Lamberth United States District Judge
The
Court has before it the "Defendants Republic of Iraq and
Ministry of Defense Motion to Revise Scheduling Order [Dkt.
#191] as Amended [Dkt. #196] to Further Extend Expert
Discovery Dates by an Additional 45 Days" and
"Defendants' Motion for Expeditious Amendment of
Scheduling Order." Defs.' Mot. to Revise Scheduling
Order, ECF No. 213; Defs.' Mot. for Amendment of
Scheduling Order, ECF No. 302. These motions are
DENIED because defendants' have not
provided good cause for amending the Court's scheduling
order regarding fact and expert discovery dates.
The
Federal Rules of Civil Procedure provide that a scheduling
order "may be modified only for good cause and with the
judge's consent." Fed.R.Civ.P. 16(b)(4). In
determining whether good cause exists to amend a scheduling
order, the Court must primarily assess the diligence of the
party that is seeking amendment to the scheduling order in
seeking discovery before the deadline. Barnes v.
D.C., 289 F.R.D. 1, 7 (D.D.C. 2012); see Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
Cir.1992) ("Rule 16(b)'s 'good cause'
standard primarily considers the diligence of the party
seeking the amendment. ... If the party was not diligent, the
inquiry should end."). This case is over nine years old
and discovery first began in 2013. Yet defendants did not
begin serving discovery requests until late February 2018.
Defendants' lack of willingness to participate in
discovery until extremely late in the process does not
constitute good cause to re-open fact or expert discovery.
Defendants'
Motion to Re-Open Fact Discovery is Denied
Defendants
argue that fact discovery should be re-opened because
plaintiff did not disclose certain documents in a timely
manner, did not disclose certain trial witnesses as having
knowledge on critical issues in a timely manner, failed to
make plaintiffs "supplemental" Rule 26 document
disclosures in a timely manner, and articulated factual
contentions in an untimely manner.
First,
defendants' claim that plaintiff did not disclose four
documents to them in a timely manner is unfounded. Rule 26(e)
broadly requires that a party supplement its disclosure
"in a timely manner." Plaintiff complied with this
requirement. Plaintiff provided defendants the "MOD
financial analysis of MOD 2004 Expenditures" document
and the Nick Beadle memorandum titled "Iraq MOD High
Level Analysis of Financial Transfers 2004" a short time
after plaintiff met with Mr. Beadle in April 2018. During
this meeting, Mr. Beadle informed plaintiffs attorneys that
he might have documents that were relevant to this
litigation, and offered to provide plaintiff with copies of
the documents. Plaintiff then disclosed the documents to
defendants as a supplemental disclosure shortly after
plaintiff received these documents from Mr. Beadle. Courts in
multiple circuits, including a fellow district court in this
circuit, have held that parties have a duty to supplement
disclosure even after the close of discovery. Iweala v.
Operational Technologies Services, Inc., No. CV
04-02067, 2010 WL 11583114, at *1 (D.D.C. Apr. 13, 2010);
Episcopo v. General Motors Corp., No. 02 C 8675,
2004 WL 628243, at *7 (N.D. 111. Mar. 29, 2004) (finding that
"the language of Rule 26(e)(2) is broad enough to
require supplemental disclosures under certain circumstances,
regardless of whether discovery has closed"); Pizza
Pub. Co. v. Tricon Global Rest, Inc., No. 99 CIV. 12056,
2000 WL 1457010, at *1 (S.D.N.Y. Sept. 29, 2000) ((Rule 26(e)
"makes no distinction between information-including
documents-acquired prior to and after the conclusion of fact
discovery (or indeed of any discovery)"). In fact,
having a duty to supplement that goes up until the trial date
serves Rule 26's purpose of promoting liberal discovery
and preventing surprises at trial. Iweala, 2010 WL
11583114, at *1. Therefore, plaintiff complied with its Rule
26(e)(1)(A) obligation to supplement its disclosure in a
timely manner.
Further,
defendants had identified Mr. Beadle as a defense witness in
February 2018. This means that defendants could have also met
with Mr. Beadle and potentially received these relevant
documents from him prior to the discovery period ending.
Defendants' decision not to speak with Mr. Beadle cannot
constitute good cause to allow defendants to re-open fact
discovery as defendants must bear responsibility for not
diligently conducting discovery and obtaining these documents
prior to the discovery period closing.
In
addition, plaintiff complied with its obligations to
supplement its disclosures when it produced the article
titled "Defense Solutions to Rebuild T-72 Tanks and
Other Military Vehicles for the Iraqi Army" and the
email from C. Clements to J. Quinn with the subject
"Photos." These documents were disclosed prior to
fact discovery closing on April 2, 2018, and defendants have
not provided any evidence that plaintiff withheld these
documents for any period of time. Defendants argue that these
documents were not provided until after the date on which the
promulgation period ended for document requests,
interrogatories, and requests for production, which
prohibited them from obtaining discovery regarding these
documents. This argument is misplaced. Plaintiff was not
under an obligation to file its supplemental disclosures
prior to the March 3, 2018 date that defendants cite as the
cutoff point. The Rules simply do not contain a strict timing
requirement for supplementation. As stated previously, having
supplemental disclosure continue-even up until the trial
date-serves the purpose of Rule 26. Accordingly, plaintiff
did not fail to meet its Rule 26 disclosure obligations and
good cause does not exist to re-open fact discovery based on
these documents.
Second,
defendants' claim that plaintiff did not disclose certain
trial witnesses as having knowledge on critical issues in a
timely manner is not accurate. Plaintiff identified Mr. Neal,
Mr. Marr, and Mr. Beadle as witnesses in plaintiffs initial
Rule 26 disclosures in September 2013. PL's Rule 26(a)(1)
Initial Disclosures, ECF 305-2. Plaintiffs initial Rule 26
disclosures in 2013 stated that these three witnesses were
expected to testify about alleged corruption within MoD and
the impact of the alleged corruption on Wye Oak. Id.
Defendants' own Rule 26 disclosure in 2013 identified Mr.
Clements as a witness. Defs.' Rule 26(a)(1) Initial
Disclosures, ECF 305-7. Further,' plaintiffs First
Amended Complaint, which was filed in March 2015, noted Mr.
Zayna's alleged insertion into the Broker Services
Agreement (BSA) and involvement with the alleged breach of
the BSA. Pl's First Verified Am. Compl, ECF 122. Thus,
defendants had notice about these witnesses and about the
issues that defendants now claim they did not have the
opportunity to investigate. Defendants must once again bear
responsibility for their own lack of diligence in conducting
discovery related to these matters. Good cause does not exist
to re-open fact discovery regarding these witnesses and the
issues they have knowledge about.
Third,
the Court is not persuaded to re-open fact discovery based on
defendants' claim that plaintiff did not timely
supplement its document disclosure of certain photographs.
Again, the Court focuses on the diligence of the party that
is seeking amendment to the scheduling order in seeking
discovery before the deadline. Defendants were aware of the
existence of many of these photographs for years and could
have requested these photographs during discovery. The fact
that defendants did not engage in a thorough discovery
process does not constitute good cause to reopen fact
discovery. Further, plaintiffs supplemental disclosures of
photographs after the March 3, 2018 date that defendants cite
as the cutoff point for propounding discovery does not
constitute a failure on the part of plaintiff to timely
disclose. Rule 26 does not contain a strict timing
requirement for supplementation, and courts have found that
having supplemental disclosure continue-even up until the
trial date-serves the purpose of Rule 26. Iweala,
2010 WL 11583114, at *1.
Fourth,
although defendants claim that plaintiff articulated factual
contentions in an untimely manner, defendants did not make a
timely motion to compel this information. Defendants'
motion to compel responses to their discovery requests
regarding these issues was filed before plaintiffs responses
were due. This Court denied that motion without prejudice as
premature. Order, ECF 315. Defendants have not presented any
additional information in this current motion that indicate
there is good cause to re-open fact discovery based on
plaintiffs factual contentions. Also, plaintiff alleges that
defendants exceeded the maximum number of interrogatories set
by this Court and that plaintiff objected to the timing of
defendants' requests for production. Again, defendants
have not made a timely motion to compel plaintiff to answer
the interrogatories or to comply with the requests for
production. The Court has no information to indicate that
plaintiff did not comply with its discovery obligations
regarding these matters. Therefore, the Court is unconvinced
to re-open fact discovery based on the information provided
by defendants.
Defendants'
Motion to Re-Open Expert Discovery is Denied
Defendants
also argue that expert discovery should be re-opened because
defendants did not have funds to hire rebuttal experts.
Defendants state that Iraq's delay in passing a 2018
federal budget caused this shortage of funds and allege that
this constitutes good cause for the Court to extend the
expert discovery period. However, defendants have known since
at least September 2013 that plaintiff planned to retain an
economics expert to testify about damages as plaintiff
disclosed this information in its Rule 26 initial
disclosures. Defendants' lack of diligence in conducting
discovery and decision to wait until such a late stage to
hire rebuttal experts does not justify re-opening expert
discovery. Defendants must face the consequences of waiting
so long to hire rebuttal experts, and the consequence here is
that they did not have the funds to hire rebuttal experts.
Thus, the Court finds that there is not good cause to re-open
expert discovery.
Defendants'
Motions to Re-Set the Date for the Parties to File
Amended/New Dispositive Motions and to Re-Set the Date for
...