United States of America v. Malik

Filing 131

MEMORANDUM AND ORDER granting Malik's 113 request for sanctions; and denying 116 Malik's Motion for Leave to Conduct Supplemental Discovery. Pursuant to Fed. R. Civ. P. 37(c)(1)(C) and 37(b)(2)(A)(ii), the Government is prohibited from presenting at trial the Interim Reports (undated and dated versions) and Final Report of the investigation, as well as information contained in those reports that is not independently available from other documents or evidence that the trial court de termines admissible at trial. This ruling is not intended to preclude Malik, if he chooses to do so, from presenting the Interim Report and Final Report, or the contents thereof, as evidence at trial to the extent they are otherwise admissible. It is further ordered that Malik shall have until 9/22/2017 to file an affidavit from his counsel requesting his reasonable expenses, including attorney's fees, incurred in filing his Motion to Compel Discovery Response under Fed. R. Civ. P. 37(a)(5)(A), along with documentation supporting the requested amount of reasonable expenses. The Government shall have seven (7) days thereafter to file a response. Signed by Magistrate Judge Teresa J. James on 9/15/2017. (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
AFAQ AHMED MALIK,
Defendant.

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Case No. 15-cv-9092-CM-TJJ

MEMORANDUM AND ORDER
In its September 7, 2017 Memorandum and Order (ECF No. 130) (the “Order”), the
Court granted Malik’s Motion to Compel Discovery Response and ordered the Government
to: (1) serve its supplemental response to Malik’s Request No. 5; (2) produce unredacted copies
of the five February 2016 emails listed on the Government’s June 22, 2017 privilege log; and (3)
produce all documents and ESI responsive to Request No. 5. Malik’s related request for
sanctions and Motion for Leave to Conduct Supplemental Discovery (ECF No. 116) were taken
under advisement pending the Government’s production of the discovery ordered. The Court
indicated in the Order that the Government’s supplemental response and document production
would be taken into consideration in the Court’s decisions regarding whether and, if so to what
extent, to award sanctions and/or to allow supplemental discovery.
On September 13, 2017, pursuant to the Order, the Government served its supplemental
response and produced the five unredacted emails, as well as fifty-seven pages of emails and
other documents responsive to Malik’s Request No. 5.

I.

REQUEST FOR SANCTIONS
The Court has reviewed the Government’s supplemental response and documents

produced on September 13, 2017. The emails and documents produced are clearly responsive to
Request No. 5, as they are associated with the Government’s investigation into Malik’s Pakistani
divorce documents. The emails were sent between February 2016 and the close of the
investigation in September 2016. The Government’s production confirms the Court’s prior
finding that the Government failed to timely supplement its response to Malik’s Request No. 5
with these responsive emails and documents, and/or a privilege log identifying them. Indeed, the
Government did not produce or identify these responsive documents on a privilege log either in
its supplemental production on June 22, 2017, or at any other time, until September 13, 2017,
when the Court ordered it to do so.
Malik’s motion does not indicate what specific sanctions he seeks for the Government’s
discovery violations. Federal Rule of Civil Procedure 37 includes a number of sanctions the
Court may impose for discovery violations. Rule 37(c)(1)(C) specifically addresses sanctions
based upon a party’s failure to disclose or supplement under Rule 26(a) or (e) and permits the
court to order payment of reasonable expenses, inform the jury of the party’s failure, or impose
“other appropriate sanctions,” including those listed in Rule 37(b)(2)(A)(i)–(vii) for disobeying a
discovery order. Under the particular circumstances of this case, the Court concludes an
appropriate sanction is provided by Fed. R. Civ. P. 37(b)(2)(A)(ii), which gives the Court the
authority to prohibit a disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters into evidence.
This sanction is appropriate here because the Court has found the Government failed to
timely supplement its production of documents responsive to Request No. 5. Emails produced
for the first time on September 13, 2017, pursuant to the Order, show the Government received
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an undated report (the “Undated Interim Report”) on its investigation into Malik’s Pakistani
divorce on September 9, 2016, in anticipation of the September 16, 2016 Pretrial Conference.
The recently produced emails also show the Government requested the investigation be closed
on September 26, 2016. Yet, the Government never voluntarily produced a copy of the Undated
Interim Report in discovery, and waited until November 30, 2016, more than two months after
the Pretrial Conference and more than three months after the close of discovery, to produce the
Interim Report.1 The main differences between the Interim Report and the Undated Interim
Report are that the Interim Report contains a September 20, 2016 “Date Approved,” a November
18, 2016 time stamp, and is on Department of Homeland Security letterhead stationery. The
Government did not produce the Final Report,2 which has an October 24, 2016 “Date Approved”
and shows the investigation closed, until May 25, 2017.
Because of the Government’s untimely production of both versions of the Interim
Reports and the Final Report to Malik, the Court concludes that an appropriate sanction is to
prohibit the Government from presenting at trial the Interim Reports (undated and dated
versions) and Final Report of the investigation, as well as information contained in those reports
that is not independently available from other documents or evidence that the trial court
determines admissible at trial. This ruling is not intended to preclude Malik, if he chooses to do
so, from presenting the Interim Report and Final Report, or the contents thereof, as evidence at
trial to the extent they are otherwise admissible.

1

ECF No. 114-2.

2

ECF No. 114-8.

3

The Court further awards Malik his reasonable expenses, including attorney’s fees,
incurred in filing his Motion to Compel Discovery Response (ECF No. 113), which the Court
granted. Under Fed. R. Civ. P. 37(a)(5)(A), if a motion to compel is granted, the court:
must, after giving an opportunity to be heard, require the party . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay
the movant's reasonable expenses incurred in making the motion, including
attorney’s fees.” But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
On or before September 22, 2017, Malik’s counsel shall file an affidavit setting out the
reasonable expenses, including attorney’s fees, incurred in filing Malik’s Motion to Compel
Discovery Response under Fed. R. Civ. P. 37(a)(5)(A), along with documentation supporting the
requested amount of reasonable expenses. The Government shall have until seven (7) days after
the filing of the affidavit to file a response. The Court will then issue a final order with regard
to the payment of expenses under Rule 37(a)(5)(A).
II.

MOTION FOR LEAVE TO CONDUCT SUPPLEMENTAL DISCOVERY
Malik requests leave to conduct supplemental discovery, but does not indicate in either

his motion or memorandum in support of his motion to compel3 what supplemental discovery he
seeks. Malik did attach to his motion what appears to be his proposed Notice of Deposition

3

On the face of his Motion for Leave to Conduct Supplemental Discovery, Malik references an
“accompanying memorandum in support of his motion.” It appears Malik intended his Memorandum in
Support of his Motion to Compel Discovery Responses and for Sanctions (ECF No. 114) to also support
his motion for supplemental discovery. The Court has considered the Memorandum in making its ruling.

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Pursuant to Fed. R. Civ. 30(b)(6),4 which the Court construes as the supplemental discovery
Malik seeks leave to serve.
Malik’s proposed deposition notice seeks a Rule 30(b)(6) Government designee to testify
regarding seven topics. Those topics include the HSI investigation into Malik’s Pakistani notice
of divorce (Topic 1), any associated documents and correspondence, (Topics 2–3), the divorce
degree obtained during that investigation (Topic 4), and the Government’s document retention
efforts and any destroyed documents (Topics 5–7). The deposition notice also includes two
document requests for any remaining documents and ESI related to the HSI investigation into
Malik’s Pakistani notice of divorce and correspondence related to the investigation.
Malik’s proposed deposition topics and document requests were submitted before the
Court’s Order requiring the Government to produce supplemental responsive documents
associated with the Government’s investigation of Malik’s Pakistani divorce documents. With
regard to the two proposed document requests, the Court finds these requests seek the same HSIinvestigation-related documents the Court has already ordered the Government to produce and
which the Government did produce. These document requests are therefore cumulative and
duplicative, and the Court denies Malik request for leave to serve the document requests.
With respect to the seven proposed deposition topics, discovery closed in this case over a
year ago, on August 19, 2016. The Court therefore construes Malik’s motion as one to reopen
discovery on those limited issues.
The Government opposes any reopening of discovery, arguing that trial is imminent, it
would be prejudiced by reopening discovery as discovery closed over eleven months ago, and
Malik fails to reasonably explain the delay in filing his motion for supplemental discovery.

4

Malik’s Proposed Dep. Notice, ECF No. 116-1.

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The decision of whether to reopen discovery is within the sound discretion of the district
court.5 In deciding whether to reopen discovery, the Tenth Circuit has identified several relevant
factors, including:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether the
non-moving party would be prejudiced, 4) whether the moving party was diligent
in obtaining discovery within the guidelines established by the court, 5) the
foreseeability of the need for additional discovery in light of the time allowed for
discovery by the district court, and 6) the likelihood that the discovery will lead to
relevant evidence.6
Evaluating Malik’s request under these factors, the Court denies Malik’s request to
conduct supplemental discovery in the form of a Rule 30(b)(6) deposition of the Government
designee on the first four proposed deposition topics. Malik filed his motion three months before
trial, which was set for October 4, 2017.7 Trial is therefore imminent. The Government opposes
the request and has convinced the Court that it would be prejudiced by the reopening of
discovery at this late date. Motions for summary judgment have already been filed and ruled
upon, and the Government has made preparations for the appearance of witnesses for the
upcoming trial date. One of those witnesses is retired from government service and in poor
health, and other witnesses must travel from overseas. The first three factors weigh against
reopening discovery at this very late stage of the case.
Another factor is whether Malik was diligent in obtaining discovery. Malik offers two
explanations for his delay in seeking to reopen discovery. First, he alleges that he delayed
because the Government “assured [Malik] there were no other responsive documents, even those

5

Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987).

6

Id.

7

The October 4, 2017 trial date has been continued pending the disposition of the matters in these

motions.

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protected by privilege,” and “had [Malik] known the investigation was concluded as of
September 10, 2016 he would have sought further discovery or filed a motion to compel at that
time.” His motion to reopen discovery was filed shortly after the Government produced 22 pages
of documents associated with the Final Report on June 22, 2017. The Court finds this factor
raises a close question and neither weighs in favor or against allowing Malik to reopen
discovery.
The fifth factor is foreseeability of the need for additional discovery in light of the time
allowed for discovery. Malik has shown that he could not have foreseen the need for discovery
regarding the Government’s investigation into Malik’s Pakistani divorce documents, as he had
no way of knowing that the Government had initiated an investigation until the Government
produced the Interim Report on November 30, 2016, which was two months after discovery had
closed. Furthermore, none of the individuals involved in the investigation were identified on the
Government’s Rule 26 initial disclosures. This factor weighs in favor of reopening discovery.
The final factor is the likelihood the discovery will lead to relevant evidence. The Court’s
Order already required the Government to produce all documents responsive to Malik’s Request
No. 5, including documents the Government may have deemed privileged. Moreover, the Court
has prohibited the Government from introducing the Interim and Final Reports, and the contents
therein, as evidence at trial. These rulings significantly diminish any rationale for granting Malik
leave to depose a Government representative on the proposed seven topics. Malik has not
convinced the Court that allowing a Rule 30(b)(6) deposition inquiry into topics 1 through 4 is
likely to lead to additional relevant evidence. Additionally, without any evidence suggesting the
Government failed to preserve a particular document, topics 5 through 7 appear unwarranted and

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unnecessary. Again, the Court’s prior rulings have addressed any such potential concerns. This
factor weighs heavily against reopening discovery.
Weighing all the factors, the Court concludes that Malik’s request to reopen discovery
should be denied. The likely importance of the limited discovery sought—which the Court
deems minimal in light of the Court’s order prohibiting the Government from introducing the
Interim and Final Reports, and the contents therein, as evidence at trial—is outweighed by the
further delay and prejudice that would be caused by allowing the discovery sought.
IT IS THEREFORE ORDERED THAT Malik’s request for sanctions is granted.
Pursuant to Fed. R. Civ. P. 37(c)(1)(C) and 37(b)(2)(A)(ii), the Government is prohibited from
presenting at trial the Interim Reports (undated and dated versions) and Final Report of the
investigation, as well as information contained in those reports that is not independently
available from other documents or evidence that the trial court determines admissible at trial.
This ruling is not intended to preclude Malik, if he chooses to do so, from presenting the Interim
Report and Final Report, or the contents thereof, as evidence at trial to the extent they are
otherwise admissible.
IT IS FURTHER ORDERED THAT Malik shall have until September 22, 2017 to file
an affidavit from his counsel requesting his reasonable expenses, including attorney’s fees,
incurred in filing his Motion to Compel Discovery Response under Fed. R. Civ. P. 37(a)(5)(A),
along with documentation supporting the requested amount of reasonable expenses. The
Government shall have seven (7) days thereafter to file a response.
IT IS FURTHER ORDERED THAT Malik’s Motion for Leave to Conduct
Supplemental Discovery (ECF No. 116) is denied.
IT IS SO ORDERED.

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Dated this 15th day of September 201 at Kansas City, Kans
D
e
17,
a
sas.

Teresa J. Ja
ames
U. S. Magi
istrate Judge
e

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