                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


    BASSEM YOUSSEF,
      Plaintiff,

          v.
                                                         Civil Action No. 11-1362 (CKK)
    LORETTA E. LYNCH., United States
    Attorney General,
       Defendant.


                          MEMORANDUM OPINION AND ORDER
                                  (May 11, 2016)

         The Court is in receipt of the parties’ submissions1 regarding Question #25 in the Draft

Voir Dire and the parties’ submissions2 regarding the Rule 701 testimony of Mr. Michael

Heimbach.

         As to the first issue, the Court finds that Question #25 in the Draft Voir Dire should be

revised to exclude the reference to publicly criticizing the government “before Congress” or “in

the courts”, as any such disclosures are not relevant to Plaintiff’s claim in this case. Question

#25, as revised, shall read as follows: “Do you have opinions as to whether federal government

employees should or should not publicly criticize the United States government in the press?”

         As to the Rule 701 testimony of Mr. Heimbach, Plaintiff puts forward two arguments as

to why the Court should exclude Mr. Heimbach’s proffered testimony regarding the effect that a

denial of the Assistant Section Chief position would have on the reputation of an FBI agent

serving as a Unit Chief.      First, Plaintiff contends that, given Mr. Heimbach’s position as


1
 Plaintiff’s [164] Notice in Response to the Court’s April 29, 2016 Order Regarding Question
#25 in the Draft Voir Dire and Defendant’s [168] Response thereto.
2
 Plaintiff’s [165] Supplemental Memorandum to Object to Mr. Heimbach’s Rule 701 Testimony
and Defendant’s [167] Response thereto.
Assistant Director of the Counterterrorism Division, Mr. Heimbach lacks the proper basis to

testify as to the effect that a denial of the Assistant Section Chief position would have on the

reputation of an FBI agent serving as a Unit Chief. See Pl.’s Supp. Mem., ECF No. [165], at 1.

Second, Plaintiff objects to Mr. Heinbach’s proffered testimony on the grounds that it is outside

the scope of Defendant’s Rule 26 initial disclosures and was not disclosed during discovery. See

id. The Court shall address Plaintiff’s arguments in turn.

       First, Plaintiff argues that Mr. Heimbach lacks the proper basis to testify pursuant to Rule

701 as to the effect that a denial of the Assistant Section Chief position would have on the

reputation of an FBI agent serving as a Unit Chief. See id. Put differently, Plaintiff contends

that Mr. Heimbach lacks the requisite personal knowledge to testify on the issue. See Pl.’s Resp.

to Def.’s Notice re: Valerie Parlave and Michael Heimbach, ECF No. [138], at 4-6.

       Defendant argues that Mr. Heimbach has sufficient personal knowledge to testify on the

issue of reputational impact because of his experiences developed over the course of his career at

the FBI. Mr. Heimbach started with the FBI in 1988 and has held a variety of positions both in

the field and at headquarters, including the positions of Unit Chief and Assistant Section Chief.

See Def.’s Notice re: Valerie Parlave and Michael Heimbach, ECF No. [137], at 2-3. According

to Defendant, Mr. Heimbach has observed the career paths of “numerous other agents within the

FBI, including as a career board voting member and chair.” Id. at 3. Defendant also cites the

fact that Mr. Heimbach has personal experience being denied numerous positions for which he

applied, and has personal knowledge as to the reputational impact of a non-selection as a result

of his years of service at the FBI. See id.

       Upon review of Defendant’s proffer, it would appear that Mr. Heimbach has sufficient

background and experience to form an opinion on the issue of reputational impact that is

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“rationally based on the witness’s perception.” Fed. R. Evid. 701. Accordingly, based on the

current record, the Court will not preclude Defendant from introducing Rule 701 testimony from

Mr. Heimbach on the issue of reputational impact. The Court is mindful, however, that at trial,

Defendant will have to make a showing that Mr. Heimbach has a sufficient basis to testify on this

issue before his testimony on the issue will be admitted under Rule 701.

        Second, as to Plaintiff’s objection concerning the scope of Mr. Heimbach’s testimony,

the Court observes an initial point that neither party has been accurate in amending their initial

disclosures. Both parties have included witnesses in their Joint Pretrial Statement that were not

listed in their initial or amended disclosures, and have offered testimony that exceeds the scope

of testimony for a previously disclosed witness. See ECF No. [77], at 10-23; Pl.’s Initial

Disclosures, Ex. A to Def.’s Response to Pl.’s Supp. Mem., ECF No. [167-1]. Throughout the

pre-trial process, the Court has attempted to cure any prejudice that may have arisen by affording

both parties opportunities to obtain additional discovery in preparation of trial. See Order (Nov.

13, 2015), at 3 (permitting Plaintiff to depose Valerie Parlave concerning issues discussed in her

declarations); Order (Apr. 1, 2016), at 4 (permitting Defendant to depose Edward Curran on

issues raised in his expert report).

        Turning to this particular witness, Mr. Heimbach, Plaintiff has been afforded several

opportunities to raise an objection to Mr. Heimbach’s testimony on Rule 26 grounds, but elected

not to raise the instant objection until the fourth pretrial conference on April 29, 2016.

Defendant first set forth Mr. Heimbach’s proffered testimony in the parties’ Joint Pretrial

Statement over a year ago, on March 11, 2015. See Def.’s Response to Pl.’s Supp. Mem., ECF




                                                3
No. [167], at 1.3 However, Plaintiff’s sole objection in the Pretrial Statement was that Mr.

Heimbach could not “give opinion or expert testimony” because “Defendant did not file the

required Opinion/Expert report.” ECF No. [77-5], at 3. Plaintiff’s objection was unfounded

because no such report was necessary for Mr. Heimbach to provide lay opinion testimony under

Rule of Evidence 701. See Fed. R. Civ. P. 26(a)(2)(A) (requiring expert disclosures only for

witnesses presenting evidence under Federal Rules of Evidence 702, 703, or 705). Additionally,

Plaintiff had an opportunity to raise an objection as to the scope of Mr. Heimbach’s testimony

during the supplemental briefing ordered by the Court in its Order issued on November 16, 2015.

See Pl.’s Resp. to Def.’s Notice re: Valerie Parlave and Michael Heimbach, ECF No. [138].

However, the only objection raised by Plaintiff in that briefing was the objection raised above,

regarding the basis of Mr. Heinbach’s personal knowledge on this issue. See id. at 4-6. Plaintiff

did not raise his instant objection under Rule 26 until the fourth pretrial conference on April 29,

2016, less than three weeks prior to the scheduled start of trial on May 16, 2016.

       Furthermore, Plaintiff could have, at any of the earlier stages, requested an opportunity to

depose Mr. Heimbach regarding the topics of his proffered testimony that fall outside the scope

of his initial disclosures. If Plaintiff had made such a request, then the Court could have

permitted Plaintiff the opportunity to depose Mr. Heimbach, as the Court did with respect to two

other witnesses in this case, Ms. Valerie Parlave and Mr. Edward Curran. See Order (Nov. 13,

2015), at 3 (permitting Plaintiff to depose Valerie Parlave concerning issues discussed in her

declarations); Order (Apr. 1, 2016), at 4 (permitting Defendant to depose Edward Curran on


3
  In the Joint Pretrial Statement, Defendant stated that Mr. Heimbach would testify, inter alia,
“about the FBI’s promotional policies and practices for special agents, including testimony that
the denial of a lateral Assistant Section Chief position would not negatively impact the reputation
or restrict the career path of an FBI agent that was serving as a Unit Chief.” Id. (citing ECF No.
[77], at 22).
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issues raised in his expert report). Now, the case is on the eve of trial, and as Plaintiff concedes,

at “this late stage, Mr. Youssef has no opportunity to depose Mr. Heimbach regarding these new

matters.” Pl.’s Supp. Mem., ECF No. [165], at 2. Instead, Plaintiff requests that the Court

exclude in its entirety Mr. Heimbach’s testimony on the issue of the effect that a denial of the

Assistant Section Chief position would have on the reputation of an FBI agent serving as a Unit

Chief. Pl.’s Supp. Mem., ECF No. [165], at 2. The Court finds that such a remedy would not be

appropriate at this time.

       Accordingly, for the reasons described above, it is hereby ORDERED that:

               (1) Question #25 in the Draft Voir Dire shall be revised to read as follows: “Do

                   you have opinions as to whether federal government employees should or

                   should not publicly criticize the United States government in the press?” and

               (2) The Court shall not, on the present record, preclude Defendant from

                   introducing Rule 701 testimony by Mr. Heimbach as to the effect that a denial

                   of the Assistant Section Chief position would have on the reputation of an FBI

                   agent serving as a Unit Chief. However, at trial, Defendant will have to make

                   a showing that Mr. Heimbach has a sufficient basis to testify on this issue

                   before his testimony on the issue will be admitted under Rule 701.

       SO ORDERED.

                                                           /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      UNITED STATES DISTRICT JUDGE




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