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Wye Oak Technology, Inc. v. Republic of Iraq

United States District Court, District of Columbia

April 18, 2019

WYE OAK TECHNOLOGY, INC., Plaintiff,
v.
REPUBLIC OF IRAQ et al, Defendants.

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Judge.

         At the close of trial, the Court ordered defendants Republic of Iraq and the Iraqi Ministry of Defense (MoD) to file a statement of points and authorities on the admissibility of documents marked DX 53 and DX 58, and related documents. Documents marked DX 55-57 are related to DX 53 and DX 58. Iraq and MoD have sought to admit these documents as business records. Defs.' Mot. to Admit Trial Exs., ECF No. 392. Plaintiff Wye Oak contends that these exhibits are not admissible because they are not properly authenticated records of a regularly conducted activity, and therefore cannot be admitted under the business records exception to the rule against hearsay. Pl.'s Mem. in Opp'n, ECF No. 395. Wye Oak further argues that DX 53 and DX 58 are incomplete. Id. The Court finds that DX 53 and DX 58, along with related documents DX 55-57, are business records and shall be admitted as evidence.

         I. Background

         DX 53 and DX 55-58 all deal with the alleged ban on exporting scrap metal from Iraq. DX 53 is a letter from July 2004 from the then-General Secretary of the Council of Ministers, Dr. Zuheir Abulghani Humadi, communicating the Prime Minister's approval of the Ministry of Industry and Minerals' proposal to stop exporting scrap materials, with the exception of exporting some materials of a military nature, conditioned upon the Prime Minister and Supreme Economic Committee's approval. ECF No. 392-1. DX 55 is a letter from June 2004 from the then-Minister of Trade, Mohamed Mustafa Al Jubory, to the Council of Ministers regarding exporting scrap. Muneer Second Suppl. Certificate of Authenticity of Business Rs. Attach. A, ECF No. 359-1 [hereinafter Muneer Second Suppl. Certificate, ECF No. 359-1]. DX 56 is a letter from June 2004 from the then-Secretary General of the Council of Ministers, Muhy Kadhum Al-Khateeb, to the Ministry of Industry, Ministry of Trade, and Ministry of Finance regarding the Prime Minister's decision to form a committee of representatives from these ministries to study the issue of exporting scrap and to provide recommendations to the Council of Ministers. Id. at Attach. B. DX 57 is a committee report from July 2004 signed by the committee chairman and representatives from the Ministry of Finance, Ministry of Trade, Ministry of Industry and Minerals, and General Commission of Customs regarding the committee's findings about exporting scrap and recommendations on the subject. Id. at Attach. C. This committee report was sent to the Minister of Trade. DX 58 is a letter from the then-General Secretary of the Council of Ministers, Dr. Humadi, from December 2004 emphasizing that scrap materials are prohibited from being sold to private entities and ordering ministries to deliver excess scrap free of charge to state-owned companies belonging to the Ministry of Industry and Minerals. ECF No. 392-2. Ms. Wafaa Muneer, the Senior Manager of Foreign Litigation of the Ministry of Justice's Legal Department, obtained copies of DX 53 and DX 55-58 from the Ministry of Trade's archives.

         II. DX 53 and DX 55-58 Constitute Business Records

         DX 53 and DX 55-58 are business records and are therefore admitted as evidence. The Federal Rules of Evidence permit the admission of:

A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time-or from information transmitted by-someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these condition are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

         Fed. R. Evid. 803(6). The certification option of Rule 902(12) applies to these documents because they are foreign records of a regularly conducted activity. Under Rule 902(12), the original or copy of a foreign records is self-authenticating if it meets the requirements of Rule 803(A)-(C), as shown by a certification of the custodian or another qualified person that is signed in a manner that subjects the maker to a criminal penalty in the country where the certificate was signed, if the certificate was false. Fed.R.Evid. 902(12). The proponent of the evidence must also give the adverse party reasonable notice of the intent to offer the record and make the record and certification available for inspection so that the adverse party has a fair opportunity to challenge the record. Id.

         These documents are the business records of the Ministry of Trade. DX 55 was a letter from the Minister of Trade and DX 57 was a committee report that included a representative from the Ministry of Trade as a committee member and was sent to the Minister of Trade. These documents were therefore both clearly made by officials serving in the Ministry of Trade, and DX 51 was sent specifically to the Minister of Trade. DX 55 and DX 57 constitute business records of the Ministry of Trade. Although documents DX 53, DX 56, and DX 58 were from the General Secretary of the Council of Ministers, the copies produced by defendants came from the Ministry of Trade's archives. The D.C. Circuit has determined that "a record of which a firm takes custody is thereby 'made' by the firm within the meaning of the [business records exception to the rule against hearsay] (and thus is admissible if all the other requirements are satisfied)." United States v. Adefehinti, 510 F.3d 319, 326 (D.C. Cir. 2007). Ms. Muneer testified that under the standard record-keeping system of the Government of Iraq, decisions and directives of the Office of the Prime Minister and the Council of Ministers to the ministries are recorded in written documents, which are transmitted to the relevant ministries. Muneer Second Suppl. Certificate 3, ECF No. 359-1; Muneer Tr. at 19:8-25:9; 93:15-96:7; 126:12-127:13; 128:9-15; 137:17-140:21. Here, the letters concerned the Ministry of Trade and were therefore transmitted to that ministry and stored in the ministry's archives as a document governing Iraq's ...


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