United States District Court, District of Columbia
C. Lamberth United States District Judge.
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.
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.
DX 53 and DX 55-58 Constitute Business Records
and DX 55-58 are business records and are therefore admitted
as evidence. The Federal Rules of Evidence permit the
A record of an act, event, condition, opinion, or diagnosis
(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
(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.
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.
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 ...