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Wye Oak Technology, Inc. v. Republic of Iraq

United States District Court, District of Columbia

October 9, 2018

REPUBLIC OF IRAQ, et al., Defendants.


          Royce C. Lamberth, United States District Judge

         Now before the Court is "Plaintiffs Motion and Memorandum Points and Authorities in Support of its Motion to Exclude Defendants' Iraqi Law Expert." Pl's Mot. to Exclude Defs.' Iraqi Law Expert, ECF No. 233 [hereinafter ECF No. 233]. Plaintiff, Wye Oak, seeks to strike defendants', Republic of Iraq (Iraq) and Ministry of Defense of the Republic of Iraq (MoD), Iraqi law expert (Fkhri Abdul Hussain Kadhum), seeks to strike Mr. Kadhum's reports, and moves for sanctions in the form of expenses and costs for deposing Mr. Kadhum. Plaintiff argues that:

(1) Mr. Kadhum failed to turn over all documents upon which his report relied, as required by Rule 26(a)(2)(B); (2) Defendants lied to both the Court and Wye Oak as to the reasons for their delays and requests for extra time; (3) Defendants' counsel impermissibly coached the witness during the course of his deposition; and (4) Mr. Kadhum had a material conflict of interest that precludes his objectivity as an expert witness because he serves as counsel to Defendants' principal witness, Raymond Zayna, and he impermissibly acted as an advocate.

ECF No. 233. The Court addresses each of these arguments below and ultimately finds them unpersuasive.

         Plaintiffs Argument that Mr. Kadhum Failed to Turn Over all Documents

         Plaintiff alleges that Mr. Kadhum failed to provide all documents that he relied on in preparing his expert report. Federal Rule of Civil Procedure 26(a)(2) requires expert reports to contain "(i) a complete statement of all opinions the witness will express and the basis and reasons for them" and "(ii) the facts or data considered by the witness in forming them [the opinions]." Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii)- During plaintiffs deposition of Mr. Kadhum in June 2018, Mr. Kadhum stated "I think I still have some documents which is [sic] not listed in my report."[1] ECF No. 233. Plaintiff argues that Mr. Kadhum should be excluded as a witness under Rule 37(c) because of his alleged failure to provide all documents under Rule 26. Rule 37(c)(1) states, "[i]f a party fails to provide information or identify a witness as required by Rule 26(a)... the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed.R.Civ.P. 37(c)(1).

         Defendants argue that plaintiff misconstrues Rule 26's obligations and allege that Mr. Kadhum has produced all exhibits used to summarize or support his opinions to plaintiff. Mr. Kadhum provided the Court with a sworn declaration stating: "When I said 'I think I still have some documents which is not listed in my report', I said 'I think' because I was not in fact completely sure that was true." Decl. Fakhri Kadhum, ECF No. 240-1. Defendants conducted a review and did not find any additional documents that Mr. Kadhum relied on that were not appended to his expert report. Defs.' Opp'n to Pl's Mot., ECF No. 240.

         The Court is well aware that there is a trust deficit between the parties in this litigation. The Court does not have any information, other than an ambiguous statement from Mr. Kadhum (who is not a native English speaker), which Mr. Kadhum has since said was not a precise statement, to indicate that Mr. Kadhum may have failed to provide the required documents pursuant to Rule 26. Therefore, the Court cannot exclude Mr. Kadhum or strike his reports based on this largely speculative ground.

         Also, plaintiff specifically cites that Mr. Kadhum testified that Mr. Timothy Mills was the source of the information supporting Mr. Kadhum's report's discussion of metadata contained in the First Amendment to the Broker Services Agreement. Pl's Reply, ECF No. 248. Plaintiff is correct that Rule 26's disclosure obligation extends to any facts or data that are considered by the expert in forming the expert's opinions, and that this includes "all materials considered by a testifying expert, except the core opinion work-product of attorneys." Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1195 (11th Cir. 2013). The Court is therefore not pleased that Mr. Kadhum did not disclose a statement of facts provided by Mr. Mills as it appears Mr. Kadhum considered the information Mr. Mill's provided regarding the metadata. However, the Court has not seen Mr. Kadhum's report and plaintiff did not provide the report to the Court as an attachment accompanying this motion. The Court will not strike part of a report that it has not even seen and will not strike Mr. Kadhum as an expert based on this.

         Plaintiffs Argument that Defendants Lied to the Court and Plaintiff as to the Reasons for Defendants' Delay

         Plaintiff alleges that defendants lied when defendants claimed that their initial expert became gravely ill late in the week before January 30 and had to be replaced, and that the replacement expert needed additional time because he could not retrieve necessary documents from the Ministry of Defense. ECF No. 233. Plaintiff bases these allegations on Mr. Kadhum's testimony during his deposition. Mr. Kadhum stated that he was unaware that defendants had engaged another expert in the case prior to him. Also, plaintiff cites Mr. Kadhum's first statement that the Ministry of Justice's move was not the only reason for his report being delayed and subsequent statement the Ministry of Justice's move did not delay his report.

         Defendants responded that they did not tell Mr. Kadhum about the expert that had been engaged before him. The Court is satisfied that Mr. Kadhum was not told about the defendant's prior expert, and does not find Mr. Kadhum's testimony to be evidence that defendants lied to the Court that defendants' initial expert became gravely ill. Further, Mr. Kadhum sought to clarify his statement regarding his report's delay the following day during his deposition. Mr. Kadhum specified that the Ministry of Justice's move did in fact cause his report to be delayed because he could not obtain all of the documents that he needed as a result of this move. The Court is satisfied with Mr. Kadhum's clarification and does not have reason to believe that defendants lied.

         Plaintiffs Argument that Defendants' Counsel Impermissibly Coached the Witness During His Deposition

         Plaintiff argues that "[defendants impeded the deposition of Mr. Kadhum by (1) failing to provide all documents relied on by Mr. Kadhum as required by Rule 26(a)(2), [2] by instructing Mr. Kadhum not to bring relevant documents to the deposition . . . and (3) by coaching Mr. Kadhum to impeach his earlier testimony ...

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