Federal Insurance v. Al Qaida

Background

This opinion concerned several related cases in multidistrict litigation arising from the September 11, 2001 attacks. Dubai Islamic Bank (DIB) moved to strike a report by Jonathan Winer, the Plaintiffs’ Executive Committees’ proposed expert. DIB alternatively asked for permission to depose Winer again, submit rebuttal expert reports, and file a revised challenge to his testimony under the Federal Rules of Evidence and the rule governing expert reliability.

Winer had timely submitted an initial report and a rebuttal report and had been deposed in July 2021. Neither report discussed DIB. After expert discovery and briefing on expert-testimony challenges had closed, and after DIB filed a renewed motion for summary judgment, the Plaintiffs’ Executive Committees served Winer’s third report on June 17, 2022. The new report discussed declassified Central Intelligence Agency documents and other evidence concerning whether DIB knowingly aided al Qaeda and whether DIB’s senior management supported or aligned with al Qaeda.

Analysis

The court held that Winer’s third report was not a proper supplement under Rule 26(e) of the Federal Rules of Civil Procedure. That rule requires a party to correct or complete an expert report or deposition when it is materially incomplete or incorrect; it does not allow a party to add new opinions after discovery simply because doing so would assist its litigation strategy.

The court found that the third report fell outside the scope of Winer’s first two reports because those reports did not mention DIB or address DIB’s alleged relationship with al Qaeda. The court also rejected the argument that the expert witness list established the relevant scope. Rule 26(e) permits supplementation of expert reports and depositions, not witness lists. In addition, substantial portions of the third report relied on depositions and other evidence that had been available before the Central Intelligence Agency released the declassified documents.

The court then considered the sanction under Rule 37(c)(1). It found that the late disclosure was neither substantially justified nor harmless. The Plaintiffs’ Executive Committees had not sought permission to file a late report or to reopen expert discovery, and DIB would have had to proceed without examining Winer about his new opinions or incur the time and expense of another deposition and rebuttal reports.

Applying the four factors used to decide whether exclusion is appropriate, the court found that the Plaintiffs’ Executive Committees had no reasonable explanation for failing to comply with the discovery schedule, that the report was of limited importance, that DIB would be prejudiced by having to respond to the new testimony, and that a continuance would not serve the interests of the long-running litigation. The court also found that the report largely repeated quotations from documents and testimony, offered little analysis, and did not meaningfully apply Winer’s expertise.

Disposition

Judge Sarah Netburn granted DIB’s motion to strike Winer’s third report. The court also precluded Winer’s testimony on the topics addressed in that report and directed the clerk to terminate the motion at ECF No. 8343. The opinion addressed the admissibility and timing of expert evidence; it did not decide the underlying claims or DIB’s pending motion for summary judgment.