UNI'I`ED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUlV[BIA

 

 

)

WYE OAK TECHNOLOGY, INC., )
Plaintiff, )

)

v. ) Civil No. 1:10-cv-01182-RCL

)

REPUBLIC OF IRAQ, et al., )
Defendants. )

)

)

MEMORANDUM OPINION

 

The Court has before it the “Defendants Republic of Iraq and Ministry of Defense Motion
to Revise Scheduling Order [Dkt. #191] as Amended [Dkt. #196] . to Further Extend EXpert
Discovery Dates by an Additional 45 Days” and “Defendants’ Motion for EXpeditious Amendment
of Scheduling Order.” Defs.’ Mot. to Revise Scheduling Order, ECF No. 213; Defs.’ Mot. for
Amendment of Scheduling Order, ECF No. 302. These motions are DENIED because defendants’
have not provided good cause for amending the Court’s scheduling order regarding fact and expert
discovery dates.

The Federal Rules of Civil Procedure provide that a scheduling order “may be modified
only for good cause and With the judge’S consent.” Fed. R. Civ. P. l6(b)(4). ln determining Whether
good cause exists to amend a scheduling order, the Court must primarily assess the diligence of
the party that is seeking amendment to the scheduling order in seeking discovery before the
deadline. Barnes v. D. C. , 289 F.R.D. l, 7 (D.D.C. 2012); see
Johnson v. Mammoth Recreations, Inc., 975 F.Zd 604, 609 (9th Cir.l992) (“Rule l6(b)’s ‘good
cause’ standard primarily considers the diligence of the party seeking the amendment . . . If the

party Was not diligent, the inquiry Should end.”). This case is over nine years old and discovery

first began in 2013. Yet defendants did not begin serving discovery requests until late February
2018. Defendants’ lack of willingness to participate in discovery until extremely late in the process

does not constitute good cause to _re-open fact or expert discovery.

Defendants’ Motion to Re-Open Fact Discoverv is Denied

Defendants argue that fact discovery should be re-opened because plaintiff did not disclose
certain documents in a timely manner, did not disclose certain trial witnesses as having knowledge
on critical issues in a timely manner, failed to make plaintiffs “supplemental” Rule 26 document
disclosures in a timely manner, and articulated factual contentions in an untimely manner.

First, defendants’ claim that plaintiff did not disclose four documents to them in a timely
manner is unfounded Rule 26(e) broadly requires that a party supplement its disclosure “in a
timely manner.” Plaintiff complied with this requirement Plaintiff provided defendants the “MOD
financial analysis of MOD 2004 Expenditures” document and the Nick Beadle memorandum titled
“Iraq MOD High Level Analysis of Financial Transfers 2004” a short time after plaintiff met with
Mr. Beadle in April 2018. During this meeting, Mr. Beadle informed plaintiff s attorneys that he
might have documents that were relevant to this litigation, and offered to provide plaintiff with
copies of the documents. Plaintiff then disclosed the documents to defendants as a supplemental
disclosure shortly after plaintiff received these documents from Mr. Beadle. Courts in multiple
circuits, including a fellow district court in this circuit, have held that parties have a duty to
supplement disclosure even after the close of discovery. Iweala v. Operational Technologies
Services, Inc., No. CV 04-02067, 2010 WL 11583114, at *l (D.D.C. Apr. 13, 2010); Episcopo v.
General Motors Corp., No. 02 C 8675, 2004 WL 628243, at *7 (N.D. Ill. Mar. 29, 2004) (flnding

that “the language of Rule 26(e)(2) is broad enough to require supplemental disclosures under

certain circumstances, regardless of whether discovery has closed”); Pizza Pub. Co. v. Tricon
Global Rest., Inc., No. 99 CIV. 12056, 2000 WL 1457010, at *1 (S.D.N.Y. Sept. 29, 2000) ((Rule
26(e) “makes no distinction between information_including documents_acquired prior to and
after the conclusion of fact discovery (or indeed of any discovery)”). In fact, having a duty to
supplement that goes up until the trial date serves Rule 26’s purpose of promoting liberal discovery
and preventing surprises at trial. Iweala, 2010 WL 11583114, at *l. Therefore, plaintiff complied
With its Rule 26(e)(1)(A) obligation to supplement its disclosure in a timely manner.

Further, defendants had identified Mr. Beadle as a defense witness in February 2018. This
means that defendants could have also met With Mr. Beadle and potentially received these relevant
documents from him prior to the discovery period ending. Defendants’ decision not to speak With
Mr. Beadle cannot constitute good cause to allow defendants to re-open fact discovery as
defendants must bear responsibility for not diligently conducting discovery and obtaining these
documents prior to the discovery period closing.

In addition, plaintiff complied with its obligations to supplement its disclosures when it
produced the article titled “Defense Solutions to Rebuild T-72 Tanks and Other Military Vehicles
for the Iraqi Army” and the email from C. Clements to J. Quinn With the subject “Photos.” These
documents were disclosed prior to fact discovery closing on April 2, 2018, and defendants have
not provided any evidence that plaintiff withheld these documents for any period of tirne.
Defendants argue that these documents Were not provided until after the date on Which the
promulgation period ended for document requests, interrogatories, and requests for production,
Which prohibited them from obtaining discovery regarding these documents. This argument is
misplaced. Plaintiff Was not under an obligation to file its supplemental disclosures prior to the

March 3, 2018 date that defendants cite as the cutoff point. The Rules simply do not contain a strict

timing requirement for supplementation. As stated previously, having supplemental disclosure
continue_even up until the trial date_serves the purpose of Rule 26. Accordingly, plaintiff did
not fail to meet its Rule 26 disclosure obligations and good cause does not exist to re-open fact
discovery based on these docurnents.

Second, defendants’ claim that plaintiff did not disclose certain trial witnesses as having
knowledge on critical issues in a timely manner is not accurate. Plaintiff identified Mr. Neal, Mr.
Marr, and Mr. Beadle as Witnesses in plaintist initial Rule 26 disclosures in September 2013.
Pl.’s Rule 26(a)(1) Initial Disclosures, ECF 305-2. Plaintist initial Rule 26 disclosures in 2013
stated that these three witnesses were expected to testify about alleged corruption Within MoD and
the impact of the alleged corruption on Wye Oak. Id. Defendants’ own Rule 26 disclosure in 2013
identified Mr. Clemer'its as a Witness. Defs.’ Rule 26(a)(1) Initial Disclosu'res, ECF 305-7. Further,
plaintist First Amended Complaint, which was filed in March 2015, noted Mr. Zayna’s alleged
insertion into the Broker Services Agreement (BSA) and involvement with the alleged breach of
the BSA. Pl.’S First Verified Am. Compl., ECF 122. Thus, defendants had notice about these
witnesses and about the issues that defendants now claim they did not have the opportunity to
investigate Defendants must once again bear responsibility for their own lack of diligence in
conducting discovery related to these matters. Good cause does not exist to re-open fact discovery
regarding these witnesses and the issues they have knowledge about.

Third, the Court is not persuaded to re-open fact discovery based on defendants’ claim that
plaintiff did not timely supplement its document disclosure of certain photographs Again, the
Court focuses on the diligence of the party that is seeking amendment to the scheduling order in
seeking discovery before the deadline. Defendants were aware of the existence of many of these

photographs for years and could have requested these photographs during discovery. The fact that

defendants did not engage in a thorough discovery process does not constitute good cause to re-
open fact discovery. Further, plaintiffs supplemental disclosures of photographs after the March
3, 2018 date that defendants cite as the cutoff point for propounding discovery does not constitute
a failure on the part of plaintiff to timely disclose. Rule 26 does not contain a strict timing
requirement for supplementation, and courts have found that having supplemental disclosure
continue_even up until the trial date-serves the purpose of Rule 26. Iweala, 2010 WL 1 15831 14,
at * l.

Fourth, although defendants claim that plaintiff articulated factual contentions in an
untimely manner, defendants did not make a timely motion to compel this information
Defendants’ motion to compel responses to their discovery requests regarding these issues was
filed before plaintiffs responses 'Were due. This Court denied that motion without prejudice as
premature. Order, ECF 315. Defendants have not presented any additional information in this
current motion that indicate there is good cause to re-open fact discovery based on plaintiffs
factual contentions. Also, plaintiff alleges that defendants exceeded the maximum number of
interrogatories set by this Court and that plaintiff objected to the timing of defendants’ requests
for production. Again, defendants have not made a timely motion to compel plaintiff to answer the
interrogatories or to comply With the requests for production. The Court has no information to
indicate that plaintiff did not comply with its discovery obligations regarding these matters.
Therefore, the Court is unconvinced to re-open fact discovery based on the information provided

by defendants.

Defendants’ Motion to Re-Open Expert Discovery is Denied

Defendants also argue that expert discovery should be re-opened because defendants did
not have funds to hire rebuttal experts. Defendants state that Iraq’s delay in passing a 2018 federal
budget caused this shortage of fiinds and allege that this constitutes good cause for the Court to
extend the expert discovery period. However, defendants have known since at least September
2013 that plaintiff planned to retain an economics expert to testify about damages as plaintiff
disclosed this information in its Rule 26 initial disclosures. Defendants’ lack of diligence in
conducting discovery and decision to wait until such a late stage to hire rebuttal experts does not
justify re-opening expert discovery. Defendants must face the consequences of Waiting so long to
hire rebuttal experts, and the consequence here is that they did not have the funds to hire rebuttal

experts. Thus, the Court finds that there is not good cause to re-open expert discovery.

Defendants’ Motions to Re-Set the Date for the Parties to File Amended/New Dispositive Motions
and to Re-Set the Date for the Parties to File Pretrial Statements are Denied

Because the Court will deny defendants’ motion to re-open fact discovery and expert
discovery, defendants’ motions to re-set the date for the parties to file amended/new dispositive

motions and date for parties to file pretrial statements will also be denied.

Defendants" Motion to Adiourn the Previous Pretrial Conference and Trial Dates is Dismissed as
Mo_ot

The Court has issued a scheduling order to set a pretrial conference for December 7, 2018
and for trial to begin December 17, 2018. Therefore, defendants’ motion to adjourn the previous

pretrial conference and trial dates is now moot.

Conclusion

Accordingly, the Court will_:
0 DENY defendants’ motion to re-open fact discovery;
0 DENY defendants’ motion to re-open expert discovery;
o DENY defendants’ motion to re-set the date for the parties to file amended/new dispositive

motions; and

0 DENY defendants’ motion to re-set the date for parties to file pretrial statements

Further, defendants’ motion to adjourn the previous preuial conference and trial dates will be

DISMISSED AS MOOT. A separate order will issue on this date.

siGNED this §§ of september, 2018.
@,,¢ C, w
Royce C. Lamberth

United States District Judge

