Opposition Brief — Saud v. Northrop Grumman Corp (No. 05-1559)

No. 05-1559

uit

———

CIn O) he OFFICE OF THE Ciciy

SUPREME COURT. U.S.

Supreme Court of the United States

o

CAPTAIN SHERIFF SAUDI,

Petitioner,

Vv.

NORTHROP GRUMMAN CORPORATION;

NEWPORT NEWS SHIPBUILDING INC.;

KEPPEL GROUP CORPORATION, d/b/a

Keppel Offshore & Marine, Limited, d/b/a

Keppel Shipyard (Pte.), Ltd.,

Respondents.

+

ON PETITION FOR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

=f

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

+

R. Grant Decker

| Counsel of Record

| William L. Stauffer, Jr.

| MILES & STOCKBRIDGE P.C.

| 1751 Pinnacle Drive, Suite 500

McLean, Virginia 22102

(703) 903-9000

Counsel for Respondents

Northrop Grumman Corporation and

Newport News Shipbuilding Inc.

THE LEX GROUP™ ¢ 1750 K Street, NW @ Suite 475 @ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 © Fax: (202) 955-0022 ¢ www.thelexgroupdc.com

QUESTION PRESENTED

Respondents, Northrop Grumman

Corporation ("NG") and Newport News Shipbuilding

Inc. ("NNS"), submit that the following question

more accurately reflects the issue concerning

Federal Rule of Civil Procedure 37(c)(1) presented in

the Petition.

.% Whether the district court's exclusion of

two of Petitioner's expert witnesses as a sanction

under Federal Rule-of Civil Procedure 37(c)(1),

where Petitioner failed to timely disclose those

witnesses, was an abuse of discretion. '

' A second issue raised in the Petition concerns Keppel

Group Corp. and Keppel Shipyard (Pte), Ltd. (who were

dismissed prior to the trial for lack of personal jurisdiction),

and is not addressed herein.

ll

CORPORATE DISCLOSURE STATEMENT -

NG is the parent company of NNS. There is

no parent or publicly held company owning 10% or

more of NG.

TABLE OF CONTENTS

Page

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CORPORATE DISCLOSURE STATEMENT ........... il

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STATEMENT OF THE CASE .o..55..coscccicciscsccccessecssacse 1

REASONS WHY THE PETITION

OREO FA Lskd MONe BONER TOND oi vniccocekctarncrvisessivcousscncedsosciortel 9

5; No Conflict Exists Among The

Circuits As To The Application

Of Sanctions Under Rule 37(C)(1)

For Failure To Make Timely

Expert Witness Disclosures .............+.... 9

2. The Fourth Circuit Correctly

Determined That The Exclusion

Was Not an Abuse of Discretion ......... 11

3. The Petition Raises No Issues of

General Importance.....................ccce00 14

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APPENDIX

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Stephens,

70 Fee FO CBE CAT. LOG oa oo cong cc ce heenccesns 14

Daval Steel Products v. M/V Fekredine,

961 F:20 13967 (2d Cir, 1991) io oo... ccicecccccesecssee 10

Dudley v. South Jersey Metal, Inc.,

S66 F.20 66 (36 Cit: 1977)... 6.5 csi icc. 10

Genentech, Inc v. U. S. Intl Trade Comm'n,

Tae Fe PRO CS ict 10, 11

Ingalls Shipbuilding, Inc. v. U. S.,

857 F.2d 1448 (Fed. Cir. 1989) ................ ‘ceae

Int'l Union United

Mine Workers of America v. Bagwell,

oS eg ag GE 2 GL * ” 2 BORER tes Sere Pee ahi bs oscar 11

Meyers v. Pennypack Woods Home Ownership Ass'n,

559 F.2d 894 (3d Cir. 1977),

overruled on other grounds,

Goodmen v. Lukens,

777 F.2d 113 (3d Cir. 1985), affd

BES FF 59 ee CRIED oa oo ckivcesb cece icdsenaceces 10

Primus v. United States,

SEO FP Sa 233 i Cr: 2OG8) 2 a 10

R.W. Int'l Corp. v. Welch,

St a RS CABG Cir LO iio ccs ooicataacsvacns 10

S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co.,

318 F.3d 592 (4th Cir. 2003)...............4.... i; 32

Saudi v. Northrop Grumman Corp.,

427 F.3d 271 (4th Cir. 2005).......... Gi tay 20h: FS

Saudi v. Valmet-Appleton, Inc.,

219 F.R.D. 128 (E.D. Wisc. 2004) ........0...0..... 13

Taylor v. Illinois,

OO6 TS OO IO ici eo 11

Rules

Pk ee ei scene lej shar ee seareioens 4

BM Be SOV. © eis oko cced dcccnsvensein en meseiecs 9

Ma) RAM Brie cbadisiviepe eee etcnee 13

Wien. RCW. B, SEROMA iii inane: 5

Pe es AAG Be ew viv dcdesiovsssceesicsincees 2:3, 4.56

gO BE SE ts Ge pe v Sane apes unete earee ney Se Sma oONy Ure Siuunbien pele 9

MELD, Ph RAV 2c ATID, os onscsssdicd ai pictach don tribechivenpaces 10

PG Pe IN Pe PIE iaisehecsccdcesenacensnrviinuccw passim

Pi es i eo ee i 2,9

Be UE Bk i PN nish ccs d desks Joga bene es

Baas. VMs BA Oe ORDRE soicdivicciccleseedine echeoatinixeeotnee

Other Authorities

International Trade Commission

Interim Rule corollary to Rule 37(b)...............0000002..

Rules of the United States Claims Court

CRPRIEY S00 FEE ao Lo oissn se nsipccsss cones tpcnspaccsainnccceavans

STATEMENT OF THE CASE

Petitioner, Captain Sheriff Saudi ("Captain

Saudi"), asserted various claims based on products

liability theories and sought damages for personal

injuries he allegedly sustained when a crane,

mounted on a vessel, the S/T MARINE ATLANTIC,

collapsed while Captain Saudi was being lifted onto

another vessel. Captain Saudi's claims against NG

and NNS arise from purported defects in the design

and manufacture of the crane.”

Trial on Captain Saudi's claims against NG

and NNS was held on October 12 and 13, 2004,

without a jury. The district court granted NG's and

NNS's motion to strike two expert witnesses not

originally designated by Captain Saudi. After the

close of Saudi's case, the district court entered

judgment for NG and NNS pursuant to Rule 52(c).°

Resp. App. pp. 1-16.

2 Newport News Shipbuilding and Dry Dock Company

(“Dry Dock”) constructed the S/T MARINE ATLANTIC. The

crane, manufactured by Appleton Marine in Wisconsin, was

installed on the vessel by Dry Dock some time in or prior to

1979. Dry Dock is a wholly owned subsidiary of NNS, which is

a wholly owned subsidiary of NG.

> Judgment also was entered in favor of Dry Dock,

which Captain Saudi did not appeal. The Appendix submitted

with the Petition does not accurately reproduce the record, at

least with regard to the judgment entered by the district court.

Appendix EF, at page 5Ga - purportedly the Amended Judgment

in a Civil Case entered November 19, 2004 — states that

judgment was entered only in favor of NG and NNS, whereas,

in fact, the Amended Judgment states that judgment was

entered in favor of Dry Dock as well. The Amended Judgment

is included in the Respondent’s Appendix submitted herewith

The di . et court granted the motion to strike

the two expe ~ because Captain Saudi violated an

order regarding his experts entered August 5, 2004.

DE 84. The August 5 Order, in turn, was the result

of Captain Saudi's failure to comply with the district

court’s Rule 16(b) Scheduling Order.* DE 43

The Scheduling Order required Captain Saudi

_ to identify his expert witnesses by June 11, 2004 and

to provide Rule 26(a)(2)(B) expert witness reports

(Resp. App. pp. 1-2) (the Appendix submitted with the Petition

is referred to herein as “Pet. App.” and Respondent’s Appendix

as “Resp. App.” — portions of the record not included in either

appendix are cited to docket entries of the district court,

referred to as “DE,” and the Fourth Circuit Supplemental Joint

Appendix, referred, to as “Fourth Cir. Supp. App.”). The

Appendix submitted with the Petition also failed to include the

district court’s Order entered January 28, 2005 explaining its

basis for entering judgment pursuant to Rule 52(c), and is

included in Respondent’s Appendix (Resp. App. pp. 3-16).

* Captain Saudi's violations of the Scheduling Order

and the August 5 Order were. not his only failures to comply

with orders and rules. As noted by the United States Court of

Appeals for the Fourth Circuit in its opinion affirming the

district court's judgment, written by Judge J. Harvie

Wilkinson, III, Captain Saudi's “actions in this litigation

presented particular challenges for the district court.” Saudi v.

Northrop Grumman Corp., 427 F.8d 271, 277-78 (4th Cir.

2005). The Fourth Circuit further stated: “The record is replete

with instances when Captain Saudi failed to abide by the

district court's rules, including missing deadlines, filing briefs

on the day of hearings, and seeking the assistance of counsel

while claiming to be proceeding pro se.” 427 F.3d at 278.

and other disclosures by July 12, 2004.° Captain

Saudi identified 30 expert witnesses by the June 11

deadline. On July 12 — the deadline for the reports

and other disclosures — however, Captain Saudi

merely served an “Amended Designation of Experts”

that was the same as the document identifying the

30 expert witnesses he had previously served (except

that the Amended Designation listed only 28 of the

30 expert witnesses). The Amended Designation

failed to comply even minimally with the

requirements of Rule 26(a)(2)(B) (among other

omissions, it provided no opinions, no bases for

opinions, and no reports).

Two weeks after his disclosures were due,

Captain Saudi filed a Motion to Extend the Time

Within Which to Complete Rule 26(a)(2)(B) Expert

Witness Disclosures ("Rule 26(a)(2)(B) Motion"). Pet.

App. L, pp. 100a — 105a. In his Petition, Captain

Saudi wholly mischaracterizes his Rule 26(a)(2)(B)

Motion, describing it as “a Motion seeking an

enlargement of time within which to disclose his

° The Scheduling Order also stated that “{dJiscovery

shall be commenced timely.” Nevertheless, Captain Saudi

served no discovery on NG or NNS until nearly three months

after the entry of the Scheduling Order and within six weeks of

the discovery cutoff. In his Petition, Captain Saudi complains

that he filed a Motion for Relief from the Scheduling Orders

that was not ruled on by the district court. He, however, did

not set the motion for hearing or otherwise arrange for its

disposition as required by a local rule of court. See Local Civil

Rules, United States District Court for the Eastern District of

Virginia (“Local Rules”), Rule 7(e).

° A copy of the Amended Designation of Experts is

Exhibit 1 to Brief in Support of Defendants’ Motion To Strike

Plaintiffs Amended Designation of Expert Witnesses. DE 78

experts under Rule 26 F.R.Civ.Proc.” (Pet. p. 5)

(emphasis added). His Rule 26(a)(2)(B) Motion,

however, nowhere mentions more time to disclose his

experts. Instead, he asked for more time “to Further

Supplement the Expert Opinions and _ Reports

required by Rule 26(a)(2)(B),” arguing that, at that

point in time “Saudi’s expert witnesses cannot give

final reports concerning the defects in design and

manufacture ... ,” and he concluded by requesting

more time “to supplement expert witness disclosures

he has previously made under Rule 26(a)(2)(B) ... .”

(emphasis added). Pet. App. L, pp. 100a, 104a.

In response to Captain Saudis Rule

26(a)(2(B) Motion, NG and NNS filed a Motion to

Strike Plaintiffs Amended Designation of Expert

Witnesses, on grounds that, inter alia, the

designation failed to provide the Rule 26(a)(2)(B)

information. DE 77, 78.

On August 4, 2004, the district court held a

hearing on the motions. At the hearing, consistent

with his Rule 26(a)(2)(B) Motion, Captain Saudi

requested adaitional time to provide expert reports.

At no point during the hearing did he ask for

permission to identify additional experts, or to file

reports for individuals that he had not designated.

DE 85.

In ruling on the motions, the district court

stated: “I'm going to give you until August 12th to

file the necessary information on your experts” - the

experts Captain Saudi had already identified. The

court then imposed its sanction: “You are going to be

limited to three experts ....” Pet. App. H, p. 72a,

lines 2-13. The district court's August 5 Order,

entered the day after the hearing, reflects that

ruling:

With regard to Plaintiffs Motion to

Extend Time Within Which to Complete

Rule 26(a)(2)(B) Expert Witness

Disclosures, and Defendants’ Motion to

Strike Amended Designation of Expert

Witnesses, the Court Orders the

following: By August 12, the Plaintiff

shall identify no more than three (3)

expert witnesses on the subject of the

defective design of the port side

handling crane, and provide all the

information required by Rule

26(a)(2)(B).

DE 84.

Captain Saudi’s mischaracterization of his

Rule 26(a)(2)(B) Motion is significant. His Petition is

based on the false premise that he was permitted

more time to disclose his experts. Yet, in his Rule

26(a)(2)(B) Motion he did not request more time to

disclose his experts — rather, he only requested, and

the district court only permitted, more time to file

reports and the other information required by Rule

26(a)(2)(B). ’

* Rule 26(a\2\A) concerns the identification of expert

witnesses, while 26(a)(2)B) concerns the disclosure of expert

witness reports and other information concerning the expert

witnesses. Captain Saudi’s Rule 26(a2\B) Motion does not

even mention Rule 26(a)(2)(A).

in respcnse to the district court's August 5

Order, Captain Saudi submitted a letter dated

August 12, 2004 with materials concerning three

purported experts, two of whom, George Moran and

Lee Wyman, had not been identified in his prior

designations, interrogatory answers, or otherwise.°

Consequently, NG and NNS filed a second Motion to

Strike Amended Designation of Expert Witnesses.

DE 92, 93.

In the Final Pretrial Order entered by the

district court, NG and NNS again objected to Moran

and Wyman. DE 108, p. 5. At the pretrial hearing,

the district court discussed the fact that Moran and

Wyman were not among Captain Saudi's designated

expert witnesses, and stated: “I don't think I

specifically covered that in the order because I don't

r>call it being an issue at the time of the order.” Pet.

App. I, p. 79a, lines 18-20. The court furthe~ stated:

“As to the other two [Moran and Wyman] who

weren't on the original list, I don't know what to say

because I didn't realize what the situation was there

because I haven't gone through all of these various

motions in reference to the pretrial conference... .”

Pet. App. I, p. 80a, lines 20-24. The court did not at

that time rule on the motion to strike.

* A copy of Captain Saudi’s August 12, 2004 letter is

Exhibit 2 to Brief in Support of Defendants’ Second Motion To

Strike Plaintiffs Amended Designation of Expert Witnesses.

DE 93.

Trial was held on October 12 and 13, 2004. °

At the conclusion of the first day of trial, the district

court heard argument on NG’s and NNS’s second

motion to strike, and granted it, stating, in part:

The Court granted you an extension

when you came on August 4th. As

counsel points out, I could have said,

well, your time’s up, you didn’t file your

expert designations, you can’t file any

expert designations. But I didn’t do

that. I said I'll give you until August

12th. And then what you did was you

came up with two people who were not

even on your original list.

Now, I just wouldn't allow anybody to

do that, and I'm not going to make an

exception in your case. You simply

can't do it. I'm going to grant the

motion to strike those two people as

experts. If you wish you can file their

reports and depositions and whatever

else you want to file about what they

have to say. But it’s simply too great a

* In his Petition, Captain Saudi refers to the district

court's denial of his request to subpoena expert witnesses

designated by NG and NNS. Pet., pp. 8-9. That request was

made during the first day of trial and sought to compel their

attendance for the next day. ‘The district court denied the

request as untimely. Pet. App. J, p. 89a, lines 2-22. A Local

Rule states that, except for good cause shown, subpoenas for

attendance of witnesses at trials “shall be served no later than

14 days” before the date of trial. Local Civil Rule 45(F)

violation of this Court’s rules to permit

you to do what you're seeking to do.

And it comes on the heels of so many

other requests for special treatment.

And I believe I made it clear to you in

June that you weren’t going to get any

more special treatm~nt.

Fourth Cir. Supp. App. p. 209, line 11 - p. 210, line

3.

After the close of Captain Saudi's case, NG

and NNS moved for judgment pursuant to Rule

52(c), which the district court granted. Resp. App.

pp. 1-16.

REASONS WHY THE PETITION

SHOULD BE DENIED

5 No Conflict Exists Among The Circuits

As To The Application Of Sanctions

Under Rule 37(C)Q1) For Failure To

Make Timely Expert Witness

Disclosures

Captain Saudi’s assertion that a conflict exists

. among the circuits as to whether a_ purported

“outcome determinative sanction” may be imposed

under Rule 37 absent violation of a “specific order” is

patently incorrect.’ There is no conflict among the

circuits — the circuits uniformly interpret Rule

37(c)(1) to mean what it says: “A party that without

substantial justification fails to disclose information

required by Rule 26(a) .. . is not, unless such failure

° Captain Saudi’s assertion also misstates the facts of

this case, in two respects. First, the exclusion of Moran and

Wyman was not “outcome determinative.” Captain Saudi had

designated three expert witnesses on the issue of defective

design - Moran, Wyman and a third, Salah Mahmoud. Yet, as

the district court noted in its Order granting NG’s and NNS’s

motion pursuant to Rule 52(c), Captain Saudi chose not to call

Mahmoud, “opting instead to send Dr. Mahmoud home.” Resp.

App., p. 8. Thus, Captain Saudi's failure to present expert

testimony was his own doing rather than the district court’s

purported “outcome determinative” exclusion. Second, there

was a violation of a “specific order” —- Captain Saudi violated

the August 5 Order when he submitted reports of experts he

had not previously identified.

10

is harmless, permitted to use as evidence at trial...

any witness or information not so disclosed.” "

In his Petition, Captain Saudi cites no case

that even suggests a conflict in the circuits regarding

the application of Rule 37(c)(1). Instead, in a

transparent attempt to manufacture a basis for

granting his Petition, he simply cites cases involving

other rules.”

‘! Compare, for example, the Fourth Circuit’s opinion

affirming the district court in this case with the First Circuit’s

opinion in Primus v. United States, 389 F.3d 231, 234 (1st Cir.

2004)“The adoption of Rule 37(c)\(1) in 1993 gave teeth to a

significantly broadened duty to comply with case management

. orders, and mandatory preclusion is the required sanction in

the ordinary case.”)citations and internal quotation marks

omitted).

’ Four of the cases cited in the Petition involved Rule

37(b)(2B) (or corollaries thereof) which, by its express terms,

concerns the violation of a predicate order before certain

sanctions may be imposed. Genentech, Inc v. U. S. Int'l Trade

Comm’n, 122 F.3d 1409, 1418-20 (1997) (failure to produce

documents (International Trade Commission Interim Rule

corollary to Rule 37(b)); R.W. Int'l Corp. v. Welch, 937 F.2d 11,

14-16 (1st Cir. 1991) (failure to answer deposition questions);

Daval Steel Products v. M/V Fekredine, 951 F.2d 1357, 1362-65

(2d Cir. 1991) (failure to cooperate at deposition, to produce

documents and to comply with subpoena); Ingalls Shipbuilding,

Inc. v. U. S., 857 F.2d 1448, 1450-52 (Fed. Cir. 1989) (failure to

answer interrogatories (Rules of the United States Claims

Court corollary to Rule 37(b)). The other Rule 37 cases cited in

the Petition were decided prior to the adoption of Rule 37(c)(1).

Dudley v. South Jersey Metal, Inc. , 555 F.2d 96, 99-100 (3d Cir.

1977) (ambiguous interrogatory answer not deemed “incorrect

when made”); Meyers v. Pennypack Woods Home Ownership

Ass’n, 559 F.2d 894, 904-05 (3d Cir. 1977) overruled on other

grounds, Goodmen v. Lukens, 777 F.2d 113 (3d Cir. 1985), aff'd

482 U.S. 656 (1987) (local rule excluding witnesses not listed in

11

The sanction of exclusion of witnesses not

timely disclosed may be imposed under Rule 37(c)(1)

— indeed, must be imposed, absent justification and

harmlessness — even without an order any more

specific than a scheduling order. There is no conflict

among the circuits.

2. The Fourth Circuit Correctly

Determined That The Exclusion Was

Not an Abuse of Discretion.

The district court’s decision to exclude two of

Captain Saudi’s expert witnesses is reviewed for

abuse of discretion. S. States Rack & Fixture, Inc. v.

Sherwin-Williams Co., 318 F.3d 592, 595 (4th Cir.

2003).

Saudi’s failure to provide the required expert

witness disclosures was neither “substantially

justified” nor “harmless” under Rule 37(c)(1).

Accordingly, the Fourth Circuit correctly determined

that the district court did not abuse its discretion in

excluding those expert witnesses.

Saudi’s proffered justification for failing to

make the required disclosures — his purported

inability to obtain information from NG and NNS -

a pretrial memorandum). Indeed, all of these cases were

decided prior to the adoption of Rule 37(c)(1) except Genentech,

Inc. The other two cases cited in the Petition as support for a

purported conflict involved contempt proceedings, Jnt’l Union

United Mine Workers of America v. Bagwell, 512 U.S. 821

(1994) and a criminal case; Taylor v. Illinois, 484 U.S. 400

(1988) (affirming exclusion of witness as sanction for failure to

disclose).

12

was not “substantial” given that he waited until

months after the entry of the Scheduling Order, and

within six weeks of the discovery cutoff, to conduct

any discovery. He also failed to timely or properly

raise any purported insufficiencies in NG’s and

NNS’s discovery responses or disclosures.

Nor was Captain Saudi’s failure to provide the

expert disclosures harmless. As stated by the

Fourth Circuit in its opinion affirming the judgment:

Rule 26 disclosures are often the

centerpiece of discovery in litigation

that uses expert witnesses. A party

that fails to provide these disclosures

unfairly inhibits its opponent’s ability

to properly prepare, unnecessarily

prolongs litigation, and undermines the

district court's management of the case.

For this reason, “we give particularly

wide latitude to the district court’s

decision to issue sanctions under Rule

37(c\(1).” This latitude is particularly

appropriate here.

Saudi v. Northrop Grumman Corp., 427 F.3d at 278-

79, quoting S. States Rack & Fixture, 318 F.3d at

595.

Here, after Captain Saudis failure to timely

disclose his expert witnesses, NG and NNS were in

the same position as defendants in two related cases

filed by Captain Saudi in other courts. In both of

those cases, the courts struck Captain Saudi’s

witnesses pursuant to Rule © (1) for failing to

13

make timely disclosures, without giving Captain

Saudi further time to provide the disclosures.

By contrast, in this case, the district court did

give Captain Saudi additional time to provide the

disclosures — an additional month from when they

were due. Yet, Captain Saudi still failed to comply

'S See Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128,

130 n. 1 (E.D. Wisc. 2004) (excluding all of Saudi’s lay and

expert witnesses. and noting that the United States District

Court for the Southern District of Texas similarly struck 14 of

Saudi's expert witnesses because he failed to timely make his

Rule 26(a\2) expert witness disclosures). As succinctly stated

by the Fourth Circuit:

We hasten to add that as the district court

recognized, it could have struck at the outset all

of Captain Saudi’s expert witnesses as a

sanction for his failure to timely file Rule 26

disclosures. This was the course pursued by the

district courts in Captain Saudi's Wisconsin and

Texas suits, when Captain Saudi similarly did

not comply with Rule 26. See Saudi v. Valmet-

Appleton, Inc., 219 F.R.D. 128, 134 (2003);

’ Saudi v. S/T Mar. Atl., 2000 WL 33993435 *4

(S.D. Tex. 2000). In this case, the district court

generously granted Saudi additional time to file

disclosures on three design experts. Saudi’s

current contention - that the district court order

limiting him to three expert witnesses did not

require him to select those witnesses from his

original Designation - is only an issue because

Captain Saudi failed to file Rule 26 disclosures

and received initially a lenient response. The

district court should not be a victim of its own

lenity, nor should Captain Saudi capitalize on

his noncompliance with the court’s rules.

Saudi v. Northrop Grumman Corp., 427 F.3d at 279.

14

with the district court's order when he provided

reports for expert witnesses he had not previously

designated.* The district court did not abuse its

discretion in excluding those witnesses and the

Fourth Circuit properly affirmed the judgment.

3. The Petition Raises No Issues _ of

General Importance.

The exclusion of two of Captain Saudi’s

witnesses pursuant to Rule 37(c)(1) raises no issues

of general importance. The exclusion was a routine

'* Captain Saudi’s contention that the August 5 Order

did not limit him to selecting three of the 30 expert witnesses

he had originally identified is belied by the express terms of the

order, and the district court’s own interpretation of the order,

as to which the Fourth Circuit accorded proper deference. See

Anderson v. Stephens, 875 F.2d 76, 80 n. 8 (4th Cir. 1989) (a

district court's interpretation of its own order is entitled to

deference). Further, as the Fourth Circuit stated in its opinion:

To the extent the order is ambiguous, an

examination of the record indicates that the

district court intended to limit Captain Saudi to

his initial Designation. See In re Tomlin, 105

F.3d 933, 940 (4th Cir.1997) (“When an order is

ambiguous, a court must construe its meaning,

and in so doing may resort to the record upon

which the judgment was based.”) (internal

quotation marks omitted). By limiting him to

three expert witnesses only, the district court

was attempting to cabin Captain Saudi's use of

witnesses and place reasonable limits on this

freewheeling litigation. Allowing Saudi to

select from outside of the initial list would have

achieved precisely the opposite result.

Saudi v. Northrop Grumman Corp., 427 F.3d at 279.

15

and unremarkable result of Saudi’s failure to make

timely disclosures and failure to comply with the

district court’s order after he was permitted

additional time to make the disclosures.

16

CONCLUSION

The Petition fails to establish any basis for

granting certiorari. There is no conflict among the

circuits regarding the authority to exclude witnesses

as a sanction under Rule 37(c)(1). The Fourth

Circuit correctly determined that the district court’s

exclusion of two of Saudi’s witnesses was not an

abuse of discretion. The Petitior raises no issues of

general importance. The Petition should be denied.

Respectfully submitted,

Northrop Grumman Corporation and

Newport News Shipbuilding Inc.

By: R. Grant Decker

Counsel of Record

William L. Stauffer, Jr.

MILES & STOCKBRIDGE P.C.

1751 Pinnacle Drive, Suite 500

McLean, Virginia 22102

(703) 903-9000

Counsel for Respondents

Northrop Grumman Corporation and

Newport News Shipbuilding Inc.