United States District Court, District of Columbia
C. Lamberth, United States District Judge
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
(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.
Argument that Mr. Kadhum Failed to Turn Over all
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." 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).
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.
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.
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.
Argument that Defendants Lied to the Court and Plaintiff as
to the Reasons for Defendants' Delay
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.
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
Argument that Defendants' Counsel Impermissibly Coached
the Witness During His Deposition
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),  by instructing
Mr. Kadhum not to bring relevant documents to the deposition
. . . and (3) by coaching Mr. Kadhum to impeach his earlier