GHAWANMEH v. ISLAMIC SAUDI ACADEMY et al

Filing 57

MEMORANDUM AND OPINION. Signed by Magistrate Judge John M. Facciola on 5/10/11. (SP, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SONIA GHAWANMEH,
Plaintiff,
v.

Civil Action No. 09-631 (JMF)

ISLAMIC SAUDI ACADEMY and
THE KINGDOM OF SAUDI ARABIA,
Defendants.

MEMORANDUM OPINION
This case was referred to me for all purposes including trial. Currently pending and ready
for resolution are the following motions: 1) defendant Islamic Saudi Academy’s (“ISA’s”)
Motion in Limine to Exclude Testimony of “Me Too” Allegations of Discrimination and Hearsay
Evidence of Defamation [#43], 2) Plaintiff’s Motion to Strike Defendants’ Motion in Limine
[#45], 3) the ISA’s Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order
as to Subpoenas Ad Testificandum [#48], 4) Plaintiff’s Motion to Strike Defendant’s Motion to
Quash, Motion to Disqualify and Motion to Enjoin [#51], and 5) Plaintiff’s Supplemental
Memorandum of Law and Motion to Compel [#54].
INTRODUCTION
In a recent Order, I commented upon the cavalier attitude the parties in this case have
displayed with regard to the Court’s deadlines. Based on recent developments, I realize that I
previously understated the problem, and that there now exist complications that could have been
avoided had the parties only obeyed the Federal Rules of Civil Procedure and complied with the

deadlines they agreed to and I ordered.
They have created a situation where the legal issues presented by their recent filings have
had to be resolved under emergency conditions, causing the Court to have to defer work on other
cases. Litigants simply have no right to ignore deadlines or their obligation to attend a pretrial
conference ready to try their case in a few short weeks. Instead, the pretrial conference in this
case became an occasion that imposed upon the Court obligations that never would have come
into existence if counsel had either complied with the discovery deadlines or moved to extend
those deadlines to accomplish some important purpose. Surely, doing that makes much more
sense than creating “emergencies” that should have never happened in the first place.
On April 20, 2010, I granted plaintiff leave to file her Second Amended Complaint [#202].1 On August 9, 2010, the parties filed their Rule 26(f) Joint Report [#28]. Therein, the parties
proposed that discovery be completed by January 14, 2011. Id. at 3. Without moving for an
enlargement of time within which to complete discovery, however, the parties then took it upon
themselves to schedule plaintiff’s deposition on February 17, 2011, one month after the
discovery deadline. The issues that are currently before me arose as a result of that untimely
deposition.
I.

Motion in Limine to Exclude Testimony of “Me Too” Allegations of Discrimination and
Hearsay Evidence of Defamation
A.

Testimony of “Me Too” Allegations of Discrimination

During her deposition on February 17, 2011, plaintiff indicated that there were other
individuals who worked for the defendants who might have information pertaining to her claim

1

The document was filed electronically on December 18, 2009.
2

that Saudi employees were treated more favorably than non-Saudis. Two more weeks went by,
and plaintiff’s counsel finally sent defendants’ counsel an e-mail indicating plaintiff’s intent to
issue subpoenas ad testificandum for twenty-one (21) persons. Notice of Service of Subpoenas
[#34] was filed electronically with the Court on March 24, 2011. A service copy of those
subpoenas was then provided to defendants’ counsel on April 4, 2011. On April 18, 2011,
defendants’ counsel moved in limine to exclude the testimony of these twenty-one people, even
though he did not learn what the witnesses would actually say until April 22, 2011, when he
received plaintiff’s section of the Joint Pretrial Statement Pursuant to Local Civil Rule 16.5
[#47]. On April 26, 2011, defendants’ counsel modified his original motion, and now seeks to
preclude the testimony of only eleven of the original twenty-one subpoenaed witnesses. See
[#48] at 1.
First, plaintiff never identified these witnesses in her Rule 26(a)(1)(A) statement. In that
statement, she only listed the following: 1) herself, 2) her husband, 3) any individuals named in
defendant’s initial disclosures, 4) any individuals needed to authenticate a document or establish
a chain of custody, 5) any individuals identified in plaintiff’s discovery requests or responses,
and 6) any individuals named in defendants’ discovery requests or responses as persons “likely to
have discoverable information.” Memorandum in Reply on Motion to Quash and in Opposition
to Motion to Strike, Disqualify and Enjoin [#53], Exhibit B at 2-3; Fed. R. Civ. P. 26(a)(1(A).
Nor did plaintiff ever file a timely supplement to that statement, as required by Rule 26(e)(1)(A)
of the Federal Rules of Civil Procedure. Instead, plaintiff’s counsel merely sent defendants’
counsel an e-mail naming these additional witnesses long after the discovery deadline had
passed.
3

The penalty for failing to make the required initial disclosure or the requisite
supplemental disclosure is specified in Rule 37(c) of the Federal Rules of Civil Procedure.
According to the rule, plaintiff cannot later call a previously unidentified witness unless her
failure to identify the witness in a timely fashion was either substantially justified or harmless.
Plaintiff’s attempt to justify her delay in providing defendants with the names of the
potential witnesses on the grounds that she only knew of their identifies at the time her
deposition was taken is frivolous; how could she not know prior to bringing her lawsuit the
identities of the persons whom she believed were treated differently than she was, based on her
ethnicity? They are, after all, her fellow employees. Plaintiff cannot be seriously suggesting that
prior to her deposition she had no reason or opportunity to identify for her lawyer those witnesses
who would support her claim of discrimination and with whom she had worked.
Plaintiff also ignores that the rule is stated in the disjunctive. The self-executing sanction
in Rule 37(c)(1) applies unless the party who failed to make or supplement the required
disclosure establishes that her failure was substantially justified or harmless. Since her failure
was not justified at all, let alone substantially justified, there is no reason to consider whether the
failure was or was not harmless to the ISA. Her recent argument that the Court should take into
account both parties’ failure to comply with discovery deadlines and then balance the interest in
complying with those deadlines against the consequences of her not being able to call certain
witnesses is completely wrong.2 Rule 37(c)(1) states that if a party does not make the requisite
disclosure, the party is not allowed to use that witness; it admits of no discretion to do anything
besides either imposing the sanction of precluding the witness from testifying or imposing one of
2

See [#54] at 6-7.
4

the sanctions specified in Rule 37(b)(2)(A)(i)-(vi). Fed. R. Civ. P. 37(c)(1)(C). One of these
sanctions must therefore be imposed and in my view the one most appropriate is to preclude the
witnesses from testifying. There is nothing in the Rule that could possibly lead to the conclusion
that no sanction whatsoever may be imposed because, on balance, one factor supposedly
outweighs some other factor.
B.

Hearsay Evidence of Defamation

The ISA also moves to preclude testimony as to any alleged defamatory statements about
plaintiff by Dr. Sakaji unless the witness was personally present at the November 2008 staff
meeting where it is alleged that Sakaji made such statements. [#43] at 2. The Court will defer its
ruling as to these statements until they are offered as evidence at trial.
II.

Plaintiff’s Motion to Strike Defendants’ Motion in Limine
In this motion, plaintiff moves to strike [#43] on the grounds that defendants’ counsel

failed to comply with the meet and confer obligation imposed by Rule 7 of the Local Rules of
Civil Procedure, which requires that “[b]efore filing any nondispositive motion in a civil action,
counsel shall discuss the anticipated motion with opposing counsel, either in person or by
telephone, in a good-faith effort to determine whether there is any opposition to the relief sought
and, if there is opposition, to narrow the areas of disagreement.” LCvR 7(m).
In its opposition to the motion, the ISA argues that it fulfilled its obligation under the
Local Rules by virtue of defendants’ counsel having met with plaintiff’s counsel on April 14,
2011, at which point plaintiff’s counsel indicated that he intended to call each of the twenty-one
recently subpoenaed witnesses in spite of the ISA’s objections. Based on this conversation as
well as numerous attempts by defendants’ counsel on April 18, 2011, the day before the ISA’s
5

motion in limine was filed, to communicate with plaintiff’s counsel about the motion, plaintiff’s
current motion will be denied. Defendants’ counsel clearly complied with the rule, and his belief
that, as a result of the April 14, 2011 in-person meeting, plaintiff would oppose such motion was,
in light of plaintiff’s actual opposition to the motion, clearly appropriate.
III.

Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order as to
Subpoenas Ad Testificandum
In this motion, the ISA moves first to quash the subpoenas duces tecum, which, while

issued to twenty-one ISA employees, were also addressed to the ISA in the attached schedule of
documents. Under Rule 45 of the Federal Rules of Civil Procedure, “[e]very subpoena must . . .
command each person to whom it is directed to do the following at a specified time and place . . .
produce designated documents . . . in that person’s possession, custody, or control . . .” Fed. R.
Civ. P. 45(a)(1)(A)(iii). In this instance, plaintiff sought documents from twenty-one ISA
employees that were in fact in not in their personal possession, custody, or control, but rather,
were business records belonging to the ISA. Indeed, irrespective of who was served, the
attachment demands that the “Islamic Saudi Academy” produce the documents requested.
Plaintiff’s effort to have these employees enter their employer’s office and remove the
employer’s records, thereby engaging in an act of theft, is an attempted abuse of the Court’s
processes. It is as if an employee of the State Department was issued a subpoena to bring to
court the records of the State Department.
Second, the document served upon these employees is not a subpoena duces tecum
pursuant to Rule 45 in the sense that it requires the person served to produce the records at the
upcoming trial. Instead, it is specifically denominated “Plaintiff’s First Request for the

6

Production of Documents” and requested that the ISA produce documents for inspection and
copying at plaintiff’s counsel’s law firm. See [#48], Attachment 1. This is nothing more than a
request to produce documents, pursuant to Rule 34 of the Federal Rules of Civil Procedure. It
should have been served during the discovery period I set and, since it was plaintiff’s transparent
attempt to evade the consequences of her failure to serve it during discovery, must be rebuffed.
This document commands no obedience from either the defendant or anyone else on whom it
was served.
The ISA’s motion for a protective order as to the subpoenas ad testificandum will, for the
reasons stated below, also be denied.
IV.

Plaintiff’s Motion to Strike Defendant’s Motion to Quash, Motion to Disqualify and
Motion to Enjoin
First, plaintiff moves to strike defendant’s motion to quash plaintiff’s subpoena duces

tecum. Having denied [#48], the Court will similarly deny plaintiff’s motion to strike the motion
to quash as moot. Second, plaintiff seeks to disqualify the law firm of Dewey LeBoeuf from
representing the twenty-one subpoenaed witnesses and to enjoin the firm from meeting with the
witnesses.
Under the District of Columbia Rules of Professional Conduct, a lawyer may not
represent a client if “[t]hat matter involves a specific party or parties and a position to be taken by
that client in that matter is adverse to a position taken or to be taken by another client in the same
matter even though that client is unrepresented or represented by a different lawyer.” D.C. RULE
OF PROFESSIONAL CONDUCT 1.7(b)(1). It was perfectly appropriate for Dewey LeBoeuf, as
counsel for the ISA, to move to quash subpoenas upon persons, whether employees or not, whom

7

it believed could not produce relevant testimony and who had received a demand to produce
documents that belonged to its client. That was a legitimate exercise of its responsibility as
counsel to the ISA; that the persons who received the subpoenas were ISA employees is
irrelevant. The ISA employees certainly did not have any interest that was adverse to the ISA’s
such that the firm’s simultaneous representation of them was improper.
Plaintiff also contends that the testimony of the subpoenaed ISA employees is clearly
adverse to the interests of the ISA and that by representing these individuals, counsel for the ISA
is attempting to keep this information from plaintiff. [#52] at 13. Counsel for ISA counters that
there is no conflict “when jointly represented defendants offer contradictory testimony and
certainly there is none where the testimony would be from a non-party.” [#53] at 5. Counsel for
the ISA further states that is has not instructed any ISA employee not to speak with plaintiff’s
counsel. Id. at 6.
First, I believe that no one owns a witness, and I will hold Dewey LeBouef to the
representation that the firm will not instruct any witness to refuse to speak with plaintiff’s
counsel. The decision is the witness’s, however, and counsel for both parties shall advise the
witness that he or she may speak to plaintiff’s counsel as he or she sees fit. Additionally, the
witness must be advised that he or she may speak to plaintiff’s counsel privately if the witness
wishes. After any such private interview, plaintiff’s counsel will provide Dewey LeBoeuf with a
candid and comprehensive summary of what plaintiff’s counsel expects the witness to say. I do
this to make sure that the summaries of the potential testimony of the witnesses are accurate and
to give fair warning of the witness’s expected testimony. I will therefore not disqualify the law
firm of Dewey LeBoeuf from its continued representation of these individuals.
8

V.

Plaintiff’s Supplemental Memorandum of Law and Motion to Compel
In this motion, plaintiff moves to compel responses to the subpoenas duces tecum.

Having previously quashed the subpoenas duces tecum as untimely, the Court will deny as moot
the motion to compel.
An Order accompanies this Memorandum Opinion.

/S/
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
Dated: May 10, 2011

9