JOHN H. SUNUNU and VICTOR H.

F RANK, Jr., P laintif fs,

v.
P HILIPP INE AIRLINES, I NC.,

Defendan t. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 98-1192 (HHK /JMF )

MEMORAN DUM OP INION This case was re fer

red to me f

or re solution of Defe ndant’s Motion to St rike Ex pert [#47] (“D efs. Mot.”) . For the re asons stated be low, the motion will be denied without prejudice. BACK GR OUND Plaintiffs are John H. Sununu, former Gove rnor of New H ampshire a

nd former Chief of Staff

to President Bush, a

nd Victor H. F rank, Jr., former United States Ambassador

to the Asian De velopment B ank. De fs. Mot. at 3. Def endant is Philippi ne Airlines, Inc. (“ PAL ”). I d. at 1. In 1997, defe ndant hired pla intiffs to assist in t he
rene g otiation of an airc raf t lease w ith W orld Airwa y s. I d. at 2. Although the
rene g otiation was ultimately succe ssful, plaintiffs claim that def endant br eac hed the terms of their c ontrac t by failingto pay

them a “suc cess f

ee.” I d. at 1. Plaintiffs theref oresued def endant f or 1) br eac h of contra ct, 2) unjust enric hment, and 3) f raud. I d. at 2. On J uly 31, 2009, the Court dismiss ed plaintiff’ s brea ch of c ontrac t claim on the g rounds that plaintiffs failed to satisfy the terms of the ag ree ment require d in order to mer it pay ment of a suc cess f

ee. Me morandum Opinion and Or der [#19] at 4-7. Thus, the only
rema ining c laims are those for unjust enric hment and fr aud. I d. at 8-11. DISCUSSIO N I
. The Parties’ Posit ions In support of their c laim of unjust enrichment, plaintiffs c laim that PAL“ca used Sununu and Fr ank to use their pr estig e, re putations and persona l contacts to succ essfully persua de World Airway s to lower the lea se rates” a nd that as a r esult, “PALhas bee n unjustly enric hed by

rec eivingthe bene fits of the lower rate s . . . without having to pa y either the fair a

nd rea sonable ra

te (10%) normally

paid to third parties for

achie ving suc h saving s, or the 4% f

ee se t out in the Agr eeme nt.” Complaint [ #1] (“Compl.”) ¶¶ 22, 24. Simi lar c laims are ma de with re spect to plaintiffs’ c laim of fra ud. Compl. ¶ 27. In Plaintiffs’ Rule 26(a) (2) Expert Disclosure s, plaintiffs indicated that they may desig nate Sununu as a

hy brid fac t/ex pert witness. De fs. Mot., Ex hibit A at 2-3. Plaintiffs define d the scope of Sununu’s potential testimony to include “industry

standard f

ee
arr ang ements for

business consulting se rvice s, the rea sonable va lue of the business service s furnished to [PAL ], t he standa rd fe es cha

rg ed for service s by

former Whit e House Chiefs of

Staff to adva

nce inter ests of U.S. businesses, and the value of the political and business ca

pital expended on behalf

of [PAL ].” I d. at 2. Plaintiffs later added that Sununu’s opinions are based on his “r espec tive knowledg e and pe rsonal
2experience in business consulting, both domestically and abr oad, includingrepr esentation and neg otiations of larg e-sc ale business de als” a s well as “his knowle dg e and pe rsonal experience as a f

ormer Chief

of Staff to the Pre sident of the United States a nd communications with former Whit e House Chiefs of Staff.” I d. at 4. Fina lly , plaintiffs noted that Sununu “was not re tained or spe cially employ ed to provide e x pert testimony in this case” and ther efor e wa s “not requir ed to pre pare a wr itten report unde r F eder al Rule of Civil P roce dure 26( a)( 2)(B ).” I d. In the motion curre ntly

befor e the Court, def

endant se eks to strike Sununu as an expert witness. In support of its motion, defendant make s the followingthree arguments. First, def endant c laims that “Sununu cannot hold himself out as an e x pert witness a nd then re fuse to disclose the ba sis for the opinions he intends to introduce into evide nce.” Def s. Mot. at 8. Second, def

endant a rgues that plaintiffs either have to f ile a Rule 26(a) (2)( B) expert repor

t for Sununu or, at a

minimum , allow def

endant to explore the basis of Sununu’s opinions, whether it be through deposition testimony or re sponses to interrog atories. I d. at 11. Fina lly , defe ndant claims that bec ause de fenda nt offer ed to enter into a protec tive order , plaintiffs ca nnot refuse to provide the re quested infor mation on the g rounds that it is confidential. I d. at 12-13. I I
. Analy sis As noted above , plaintiffs’ bre ach of contra ct claim wa s previously dismiss ed by the Court and the only

rema ining c laims are those for unjust enric hment and fr aud. The g rava men of both of these claims is that PALwas unjustly enric hed bec ause it did not have to pa

y the rates normally

char g ed or the 4% contra ctual rate for the service s it

3rec eived. In order to support these cla ims, plainti ffs must, as they conce de, provide evidenc e re lating to 1) industry standard f

ee a rra ng ements for

business consulting service s, 2) the re asonable value of the servic es provided to de fenda nt, 3) standar d fee s char g ed by

former Whit e House Chiefs of Staff, a nd 4) the va lue of the c apital (political and business) e x pended on be half of de fenda nt. Defs. Mot., Exhibi t A at 2. As plaintiffs have c hosen to do this through Sununu’s testimony , it is clear that at least one of the purposes of Sununu’s testimony is to offer his opinion. See De fs. Mot. at Exhi bit A. Be cause defe ndant does not quar rel with the fa ct that Sununu was not “re tained or specific ally

employ ed to provide e x pert testimony ,” or that his duti es as a consultant do not “re gularly

involve g iving e x pert testimony ,” the issue is under what cir cumstance s Sununu may , as either

a hy brid/fac t witness or simply a fa ct witness, provide opinion testimony

. Wit h respe ct to expert witnesses, Rule 26 of the F eder al Rules of Civil P roce dure states that “a

party must disclose to the other par ties the identity

of any witness it may use at trial to pre sent evidenc e.” F ed. R. Civ. P. 26(a)(2)( A). Rule 26 fur ther re quires that the “disclosure must be acc ompanied by a wr itten report–pr epar ed and signed by the witness–if the witness is one re tained or spe cially employ ed to provide e x pert testimony in the case or one whose duties as the pa rty ’s employ ee r egularly

involve g iving e x pert testimony .” F ed. R. Civ. P. 26(a)(2)( B) . Significa ntly , “‘[b]y

distinguishing be tween the identification of a

n expert whose opinions may be pre sented at trial, and the re quirement of an e x pert re port, Rule 26(b)( 4)(A) reiter ates that Rule 26(a )(2) (A) a pplies to all testifying e x perts,’ a

nd thus even non-r etained e x perts ar e subjec t to deposition as fact

4witnesses, if not the re portingrequire ments of Rule 26(a) (2)( B) .” B eec hg rove

Redeve lopment, L L C v. Carter & Sons P lumbing, He atingand Air- Conditi oning, I nc., No. 07-CIV-8446, 2009 WL981724, at *4 (E.D. L a. 2009) ( quoting Ha mburg er v. State Fa rm Mut. Auto. Ins. Co., 361 F.3d 875, 883 n.4 (5th Cir. 2004)). I n addition, speaking to subsection (b)( 4)(A) , the Advisory Commi ttee noted that “ the subdivision does not addre ss itself to the expert whose information wa s not acquire d in prepa ration for trial but rather beca use he w as an a ctor or vie wer with respec t to the transac tions or
occur renc es that ar e par

t of the subject matter

of the law suit” and that “[s]uch an expert should be treated as a

n ordinary

witness.” Advisory

Commi ttee’s note to the 1970 Amendment. As an “ ordinary

witness,” ther efor e, Sununu is subject to the same discove ry as all other witnesse s, including inter rog atories a

nd depositions. To allow Sununu to give opinion testim ony

without permitting def

endant to explore the ba sis for those opinions would be to ig nore the application of Rule 26 a s to not justexpert witnesses but as to all witnesses. This is espec ially true g iven the broa d scope of permissible discover

y under Rule 26, which states that “ [p] arties may obtain discovery

reg arding

any nonprivileg ed matter that is re levant to any party ’s claim or de fense ” and that the “[r]elevant evidenc e need not be admissible at the trial if the discove ry appea rs re asonably

calc ulated to lead to the discovery

of admissible evidenc e.” F ed. R. Civ. P. 26(b)(1). In order to prove that de fenda

nt was unjustly

enric hed and/or

committed fraud, plaintiffs have to establish that 10% is the “fa ir and re asonable rate . . . normally paid to third parties” for a chieving the ty pe of savings the y

secur ed for

PAL . In order

to defe nd
5ag ainst plaintiffs’ cla ims, defenda nt has to establish that 10% is not a fair and re asonable rate , and that it is not the rate nor mally char g ed third par

ties. The next issue, therefor e, is whether plaintiffs, throug h Sununu, have provide d defe ndant with sufficie ntly detailed information to do so. Plaintiffs cite to numerous sec tions of Sununu’s depositions i n support of their contention that suffic ient information was pr ovided def endant. See , e.g ., Plains. Opp. at 19. In eac h of the sec tions, however, the information provided doe s not even c ome close to givingdefe ndant a true understandingof the wa y in which fe e ar

rang ements ar e derive d. For

example, in his May

19, 2010 deposition, Sununu i dentified some of the varia bles he c onsidered in de terminingan appr opriate f ee: Q Okay . And I

also believe that y ou testified that that re tainer g ener ally varie s from 20 to $40,000 a month? A That’s the usua l. Q What about in 1997, was that the amount you char g ed? A Yes. Q And what we re the fac tors that you considere d in deter mining whe ther to cha

rg e, you know, 20,000 or 40,000 or somewhere in betwee n? A How intense a

n eff ort it require d, in terms of time, whether there was a

lot of international travel, whether we ha d to do a lot of rese arc h work. The level of w ork involved, the tenur e of the contra ct. I f - - if a c lient would come in and make a multiy ear commitment, they

would g ener ally

g et a little lower rate than a c lient who only wants to do a one -y ear commitment. Plains. Opp., Ex hibit 1 at 365-66. L ater in the deposition, however , Sununu refuse d to provide any of the de tails relating to his firm’s other contra cts:
6Q . . . What I ’m askingis are you expressing a n expert opinion that y ou - - your - - the value of y our service s was a 7 pe rce nt succe ss fee on succe ss fee s that y ou have be en paid in the pa st - - A Yes. Q - - by

other c lients? A Yes. This is consistent with work we have done for other clients. Q Okay . What other client? A I ’m not g oing to tell you. Q What kind of work have y ou done for the other clients? A We have - - we have done a sig nificant solution [si c] of a conf

lict that had a va lue in the - - a lmost $100 milli on and re ceive d a succ ess fe e of 10 perc ent on that. Q What kind of service s did y ou provide in that ca se? A We resolved a

12-y ear dispute and had our

client paid the amount [sic] - - ve ry signific ant amount. Q What was the nature of the dispute? A I ’m not g oing to tell you. I d. at 376-77. By ref using to provide defe ndant with information about, for example, the amount of ef

fort other contra cts requir ed, the amount of time neede d, the amount of international travel involved, whethe r a lot of r esea rch w as re quired, a

nd the tenure of the contra ct, all fa ctors identified by Sununu previously

in his deposition, he is refusingto provide de fenda

nt with clear ly

rele vant information. See F ed. R. Evid. 401 (“e vidence havingany

tendenc y to make the e x istence of

any fac t that is of conseque nce to the deter mination of the ac tion more probable or less proba ble than it would be without the evidenc e”) . Wit hout knowing a ny of the spec ifics of plaintiffs’ other c ontrac ts, defe ndant ca

nnot possibly

assess and the n potentially dispute plaintiffs’ cla ims.

7Additionally , the answe r Sununu g ave – “ Iam not g oing to tell you” – wa s

improper. Confr onted with an objec tionable question, a witness must either a nswer the question or claim a pr ivilege , with the latter be ing the only permissible basis for r efusing to answer a question, unless he intends to file a motion under Fe dera l Rule of Civil Procedur e 30(d) (3). F ed. R. Civ. P. 30(c)(2). I n other wor ds, Sununu could have moved for a protec tive order

prior to his deposition if he had a justifiable fea

r that def endant’ s questions would invade a pr ivilege rec og nized in law (Fe d. R. Civ. P . 26(c) (1)( D)), or he could have claimed a

specific and leg itimate privileg e and e x plained at the de position t he leg al basis for his c laim. Answering , “I am not g oing to tell you,” is a re sponse that the Fe dera l Rules do not countenance

. There is a simple soluti on. Sununu’s deposition will be re -opene d and he ma y be asked the questions he re fused to answ er in his first deposition. Any objection base d on rele vance may

be made , but Sununu mus t answer the question, subject to that objection. See F ed. R. Civ. 30(c)( 2). He may not object, howeve r, on the grounds of privileg e; the time for his moving f

or a pr otective or der ha s come a nd g one. Instead, by

the attac hed order , Iwill order the tr anscript sealed a nd direc t all participants in the deposition and a ll persons in attenda

nce at the deposition not to di sclose, disseminate, or transmit any

thing Sununu say s. The orde r I

will issue is without prejudice to defe ndant’s motion beingrene wed if Sununu sti ll refuse s to answer the questions posed. An Orde r ac companies this Memora ndum Opinion.

8J OHN M. F ACCI OLA UNI TED STATES MAGI STRATE J UDGE

9