UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 11-1362 (CKK)

MEMORANDUM OPINION AND ORDER (May 11, 2016) The Court is in receipt of the parties’ submissions 1 regarding Question #25 in the Draft Voir Dire and the parties’ submissions 2 regarding the Rule 701 te stimony 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 referen ce to publicly criticizing the go vernment “before Congress” or “in the courts”, as any such disclosures are not relevant to Plaint iff’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 public ly criticize the United St ates government in the press?” As to the Rule 701 testimony of Mr. Heimbach, Plaintiff puts fo rward two arguments as to why the Court should exclude Mr. Heimbach’s proffered testim ony regarding the effect that a denial of the Assistant Section Chief position would have on th e 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 R esponse to the Court’s April 29, 2016 Order Regarding Question #25 in the Draft Voir Dire and Def endant’s [168] Response there to.

2 Plaintiff’s [165] Supplemental Memorandum to Object to Mr. Hei mbach’s Rule 701 Testimony and Defendant’s [167] Response thereto.

BASSEM YOUSSEF, Plaintiff,

v. LORETTA E. LYNCH., United States Attorney General, Defendant.2 Assistant Director of the Count erterrorism Division, Mr. Heimba ch 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 no t disclosed during discovery. See
id. The Court shall address Plai ntiff’s arguments in turn. First, Plaintiff argues that Mr. Heimbach lacks the proper basi s to testify pursuant to Rule 701 as to the effect that a denial of the Assistant Section Chi ef 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 tes tify on the issue. See Pl.’s Resp. to Def.’s Notice re: Valerie Pa rlave and Michael Heimbach, ECF No. [138], at 4-6. Defendant argues that Mr. Heimbach has sufficient personal know ledge to testify on the issue of reputational impact bec ause of his experiences develop ed over the course of his career at the FBI. Mr. Heimbach started with the FBI in 1988 and has hel d 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 “nu merous 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 num erous positions for which he applied, and has personal knowledge as to the reputational impa ct of a non-selection as a result of his years of service at the FBI. See id. Upon review of Defendant’s proffe r, it would appear that Mr. He imbach has sufficient background and experience to form an opinion on the issue of re putational impact that is3 “rationally based on the witness’s perception.” Fed. R. Evid. 701. Accordingly, based on the current record, the Court will not preclude Defendant from intr oducing Rule 701 testimony from Mr. Heimbach on the issue of rep utational impact. The Court is mindful, however, that at trial, Defendant will have to make a sh owing that Mr. Heimbach has a s ufficient 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 Joi nt Pretrial Statement that were not listed in their initial or amended disclosures, and have offere d 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 Re sponse to Pl.’s Supp. Mem., ECF No. [167-1]. Throughout the pre-trial process, the Court has attempted to cure any prejudic e that may have arisen by affording both parties opportunities to obtain additional discovery in pr eparation 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 wit ness, Mr. Heimbach, Plaintiff ha s 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 co nference 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., ECF4 No. [167], at 1. 3 However, Plaintiff’s sole object ion 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. Plaint iff’s objection was unfounded because no such report was necessary for Mr. Heimbach to provid e lay opinion testimony under Rule of Evidence 701. See Fed. R. Civ. P. 26(a)(2)(A) (re quiring expert disclosures only for witnesses presenting evidence unde r Federal Rules of Evidence 7 02, 703, or 705). Additionally, Plaintiff had an opportunity to raise an objection as to the sc ope of Mr. Heimbach’s testimony during the supplemental briefing ordered by the Court in its Or der issued on N ovember 16, 2015.
See Pl.’s Resp. to Def.’s Notice re: Valerie Parlave and Michael H eimbach, ECF No. [138]. However, the only objection rais ed by Plaintiff in that briefin g was the objection raised above, regarding the basis of Mr. Heinb ach’s personal knowledge on thi s issue. See id. at 4-6. Plaintiff did not raise his instant objection under Rule 26 until the fou rth pretrial conference on April 29, 2016, less than three weeks prior to the scheduled start of tri al on May 16, 2016. Furthermore, Plaintiff could ha ve, at any of the earlier stage s, requested an opportunity to depose Mr. Heimbach regarding the topics of his proffered testi mony that fall outside the scope of his initial disclosures. If Plaintiff had made such a reque st, 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. Edwar d Curran. See Order (Nov. 13, 2015), at 3 (permitting Plaintiff to depose Valerie Parlave con cerning 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. Hei mbach would testify, inter alia , “about the FBI’s promotional po licies and practices for special agents, including testimony that the denial of a lateral Assist ant Section Chief position would not negatively impact the reputation or restrict the caree r path of an FBI agent that was serving as a Unit Chief.” Id. (citing ECF No. [77], at 22).5 issues raised in his expert report). Now, the case is on the e ve of trial, and as Plaintiff concedes, at “this late stage, Mr. Youssef has no opportunity to depose M r. Heimbach regarding these new matters.” Pl.’s Supp. Mem., ECF No. [165], at 2. Instead, Pla intiff requests that the Court exclude in its entirety Mr. Heimbach’s testimony on the issue o f the effect that a denial of the Assistant Section Chief position would have on the reputation o f 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 reas ons 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 sh ould or should not publicly cr iticize the United States government in t he press?” and (2) The Court shall not, on the pres ent record, preclude Defendant from introducing Rule 701 testimony by Mr. Heimbach as to the effect that a denial of the Assistant Section Ch ief position would have on the reput ation of an FBI agent serving as a Unit Chief. H owever, at trial, Defendant wi ll have to make a showing that Mr. Heimbach has a sufficient basis to testify o n this issue before his testimony on the issue will be admitted under Rule 7 01.
SO ORDERED. / s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE