United States District Court, District of Columbia
C. Lamberth, United States District Judge
before the Court is the defendants' "Motion for
Leave to Take De Bene Esse Depositions of: Iraq
Representive Mrs. Wafaa S. Muneer; MoD Representative Ali
Talib; and Defendants' Iraqi Legal Expert Fakhri
Kadhum" and defendants' amendment to this motion.
Defs.' Mot. for Leave to Take De Bene Esse
Deps., ECF No. 298 [hereinafter ECF No. 298]; Defs.'
Amendment to Mot. for Leave to Take De Bene Esse
Deps., ECF 307. Defendants, Republic of Iraq and Ministry of
Defense of the Republic of Iraq, seek to take de bene
esse depositions in Cairo, Egypt of Mrs. Muneer, Mr.
Talib, and Mr. Kadhum to preserve their testimony for trial.
These witnesses all reside in Baghdad, Iraq.
this jurisdiction does not have controlling case law on when
de bene esse depositions are appropriate, the Fifth
Circuit articulated three primary factors to consider in
conducting this analysis in Charles, which have been
used by other district courts. Charles v. Wade, 665
F.2d 661, 664-65 (5th Cir. 1982); See, e.g., Bamcor LLC
v. Jupiter Aluminum Corp., No. 2:08 CV 194, 2010 WL
4955545, at * 1 (N.D. Ind. Nov. 29, 2010). In
Charles, the Fifth Circuit focused on: (1) the
unavailability of the witness; (2) the potential for
prejudice to the opposing party; and (3) whether the deposing
party knew the information the potential witness would
testify to prior to the deposition. Charles, 665
F.2d at 664-65.
these witnesses are all unavailable. Under Federal Rule of
Civil procedure 32, a witness is considered unavailable if
the "witness is more than 100 miles from the place of
hearing or trial or is outside the United States, unless it
appears that the witness's absence was procured by the
party offering the deposition." Fed.R.Civ.P.
32(a)(4)(B). These witnesses all reside in Baghdad, Iraq and
are therefore outside of the United States. Defendants have
not procured the absence of any of these witnesses. This
means that these witnesses are unavailable.
analysis of the second factor of whether plaintiff will
suffer prejudice if defendants are allowed to conduct de
bene esse depositions of Mrs. Muneer and Mr. Talib in
Cairo, Egypt is different from the analysis in regards to Mr.
Kadhum. Plaintiff will not suffer prejudice if defendants are
allowed to conduct de bene esse depositions of Mrs.
Muneer and Mr. Talib. Plaintiff will still have an
opportunity to cross-examine Mrs. Muneer and Mr. Talib at
their de bene esse depositions. Plaintiff may either
attend these depositions in person or if plaintiff elects to
participate remotely, defendants shall make means available
to do so. Further, defendants have requested that the Court
order the parties to meet and confer to set the specific
dates for the de bene esse depositions and order the
parties to give joint notice of the dates to the Court. This
provides another layer of protection for plaintiff to reduce
potential prejudice by ensuring that plaintiff can negotiate
dates for the depositions of Mrs. Muneer and Mr. Talib to
occur that provides plaintiff adequate time to prepare for
the depositions. See Charles, 665 F.2d at 665.
plaintiff will suffer prejudice if defendants are allowed to
conduct de bene esse deposition of Mr. Kadhum. Mr.
Kadhum was previously deposed in June 2018 in Beirut,
Lebanon. Plaintiff already incurred great expense to conduct
that deposition. Defendants could have taken Mr. Kadhum's
de bene esse deposition during that trip but elected
not to. Allowing defendants to take leave now to take Mr.
Kadhum's de bene esse deposition would lead to
significant expense on the part of plaintiff that could have
been avoided. This is significantly more prejudicial to
plaintiff than the situation in regard to Mrs. Muneer and Mr.
argue that Mr. Kadhum is unable to attend trial because he is
experiencing health problems that preclude him from traveling
on long flights. However, defendants have not provided any
evidence to substantiate this claim. Defendants have only
provided the Court with a conclusory assertion that Mr.
Kadhum is ill and cannot travel from Baghdad to Washington,
D.C., and a statement from Mr. Kadhum declaring that he is
"under medical treatment for high blood pressure and
other ailments" and that his physician advised him
against traveling on long flights. ECF No. 298; Decl. Fakhri
Kadhum, ECF No. 298-1. These conclusory statements, which are
not accompanied by any evidence from Mr. Kadhum's
physician, are insufficient to convince the Court to allow
defendants to take leave to take Mr. Kadhum's de bene
esse deposition. Defendants have not elaborated on Mr.
Kadhum's medical ailments and have not explained why Mr.
Kadhum cannot travel on long flights. See Weiss v. First
Unum Life Ins., No. CIV.A. 02-4249 (GEB), 2010 WL
1027610, at *2 (D. N.J. Mar. 16, 2010) (finding that although
the plaintiff had put forward some evidence about the his
declining health to support his motion to take his de
bene esse deposition, the statements made by the
plaintiffs doctor and arguments made by the plaintiffs
counsel were insufficient to warrant the plaintiffs de
bene esse deposition because the statements were
conclusory and lacked sufficient evidentiary support).
Therefore, the Court finds defendants' argument that Mr.
Kadhum is unable to attend trial because he is experiencing
health problems to be insufficient. Defendants must suffer
the consequences of electing not to take Mr. Kadhum's
de bene esse deposition at the time plaintiff
traveled to Beirut several months ago to depose Mr. Kadhum.
Defendants cannot escape the consequences by forcing
plaintiff to possibly expend significant sums of money to
travel to Cairo, Egypt to engage in another deposition of Mr.
third factor from Charles weighs in defendants
favor. Defendants know the information that these witnesses
will testify to at their depositions. Defendants are not
seeking to discover these witnesses' testimony after the
discovery period has closed. Instead, defendants are solely
seeking a means to introduce these witnesses' testimony
at trial. Defendants are entitled to present their witnesses
the potential for prejudice to plaintiff if the Court allowed
defendants to take de bene esse deposition of Mr.
Kadhum is too great to allow. The Court
DENIES defendants motion for leave to take
Mr. Kadhum's de bene esse deposition. The Court
GRANTS defendants motion for leave to take
Mrs. Muneer and Mr. Talib's de bene esse
depositions because the three factors from Charles
indicate that de bene esse depositions are
appropriate for those witnesses.
Federal Rules of Civil Procedure permit defendants to use the
de bene esse depositions of Mrs. Muneer and Mr.
Talib at trial, and to use the June 2018 deposition of Mr.
Kadhum at trial if he is not present. Rule 32 provides that
"[a] party may use for any purpose the deposition of a
witness, whether or not a party, if the court finds . .. that
the witness is more than 100 miles from the place of hearing
or trial or is outside the United States, unless it appears
that the witness's absence was procured by the party
offering the deposition." Fed.R.Civ.P. 32(a)(4)(B).
Again, Mrs. Muneer, Mr. Talib, and Mr. Kadhum all reside
outside the United States-these witnesses reside in Baghdad,
Iraq. Defendants have not procured any of these
witnesses' absences. Therefore, under Rule 32, defendants
may use the de bene esse depositions of Mrs. Muneer
and Mr. Talib, and may use the June 2018 deposition of Mr.
Kadhum at trial. Defendants must suffer the consequences of
the fact that defendants did not elect to take Mr.
Kadhum's de bene esse deposition during the trip
to Beirut for Mr. Kadhum's deposition several months ago.
Court stresses that if this was a jury trial in which the
jury had to weigh the credibility of witnesses, the Court may
weigh the factors analyzed in this opinion differently. The
Court may be less willing to allow a party to take leave to
take de bene esse depositions of individuals who are
employed by the party in that situation. However, because
this is a bench trial, the Court is not as concerned about
this issue. The Court suspects that other parties will not be
inclined to take de bene esse depositions of
witnesses except in rare circumstances because such a
strategy would be unlikely to enhance the credibility of
their witnesses. Also, the Court must express great
displeasure with defendants regarding the fact that
defendants failed to produce Mrs. Muneer and Mr. Talib as
deposition witnesses pursuant to Federal Rule of Civil
Procedure 30(b)(6)-which this Court sanctioned defendants
for-and are now taking de bene esse depositions of
Mrs. Muneer and Mr. Talib in Cairo, Egypt. Defendants'
actions border on disregard for the Court's processes.
the Court GRANTS leave to defendants to take
de bene esse depositions of Mrs. Muneer and Mr.
Talib in Cairo, Egypt. The Court DENIES
leave to defendants to take de bene esse deposition
of Mr. Kadhum. Further, the Court ORDERS
counsel for the parties to meet and confer to set the
specific dates for the de bene esse depositions of
Mrs. Muneer and Mr. Talib and ORDERS the
parties to give joint notice to the Court of the dates. It is
FURTHER ORDERED that at the election of
plaintiff, plaintiff may participate in the de bene
esse depositions of Mrs. Muneer and Mr. Talib by remote
video means. Plaintiff may so elect by giving written notice
to defendants' counsel at least five days prior to the
first deposition. If plaintiff so elects, defendants shall
make the necessary arrangements for the video transmission by
Skype or other reliable means. A separate order will issue on