AHPW Inc v Federated States of Micronesia [2001] FMSC 15; 10 FSM Intrm. 277 (Pon. 2001) (29 June 2001)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as AHPW, Inc. v. FSM,
[2001] FMSC 15; 10 FSM Intrm. 277 (Pon. 2001)

[2001] FMSC 15; [10 FSM Intrm. 277]

AHPW, Inc.,
Plaintiff,

vs.

GOVERNMENT OF THE FEDERATED STATES OF
MICRONESIA and GOVERNMENT OF THE
STATE OF POHNPEI,
Defendant.

CIVIL ACTION 199-053

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: June 29, 2001

APPEARANCES:

For the Plaintiff:
Douglas F. Cushnie, Esq.
P.O. Box 949
Saipan, Northern Marianas MP 96950

Martin Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941

For the Defendant (FSM):
R. Anthony Welch, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant (Pohnpei):
Joses Gallen, Esq.
Acting Attorney General
Pohnpei Department of Justice
P.O. Box 1555
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure ; Discovery
Because a court may order that a trade secret or other confidential commercial information should not be disclosed or should be disclosed only in a designated way, the crafting of an appropriate

[10 FSM Intrm. 278]

order to protect the disclosure of confidential information lies within the trial court's discretion. AHPW, Inc. v. FSM, [2001] FMSC 15; 10 FSM Intrm. 277, 278 (Pon. 2001).

Civil Procedure ; Discovery
A court may order confidential commercial material disclosed to opposing counsel to review and to submit to the court a list of the individuals who require access to the material and for what general purposes, and to also apprise the court generally of the quantity of material involved. If the proposed further disclosure appears reasonable under all the circumstances, the court may then direct the named individuals to submit affidavits, stating that they will use the information only for the limited purpose of the litigation and that they agree not to disclose the information to or discuss it with persons other than the attorney and the persons appearing on the list submitted to the court. All persons given access to the confidential information will be subject to sanction if they violate the protective order. AHPW, Inc. v. FSM, [2001] FMSC 15; 10 FSM Intrm. 277, 278-79 (Pon. 2001).

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COURT'S OPINION

MARTIN YINUG, Associate Justice:

Plaintiff AHPW, Inc. ("AHPW"), has moved for a protective order under Rule 26(c) of the FSM Rules of Civil Procedure. The FSM and Pohnpei have filed a joint response.

AHPW asks for restrictions on how its confidential customer lists are to be disclosed to the defendants under item 23 of the FSM's discovery request filed on October 19, 2000. Rule 26(c)(7) provides that the court may order "that a trade secret or other confidential . . . coial iation tion not be t be disclosed or be disclosed only in a designated way." The crafting of an appropriate order to protectdiscl of confidential information lies within the trial court's discretion. Centurinturion Inon Indus., Inc. v. Warren Steurer & Assocs., [1981] USCA10 313; 665 F.2d 323, 326 (10th Cir. 1981). Specifically, in Turmenne v. White Consolidated Industries, Inc., 266 F. Supp. 35, 37 (D. Mass. 1967), the court held that customer information "be revealed only to defense counsel active in this case and to persons selected by them to assist them in handling this case and may be used by them and their assistants only for purposes of this litigation." An additional protective measure employed by the court in United States v. International Business Machines Corp., 82 F.R.D. 183, 184 (S.D.N.Y. 1979) was to require each person permitted access to confidential information to submit an affidavit stating that he or she would abide by the terms of the protective order.

The material requested by the FSM under item 23 of its discovery request filed on October 19, 2000, will be disclosed on the following terms. No later than 30 days from the date hereof, the requested discovery will be submitted to Mr. Anthony Welch, attorney for the FSM. Initially, access to the discovery materials will be limited to Mr. Welch, and he will make no further disclosure of the information at that time. He will review the material and submit to the court a list of the individuals who require access to the information, and for what general purposes. He will also apprise the court generally of the quantity of material involved. If the proposed further disclosure to those persons appears reasonable under all the circumstances, the court will direct the named individuals to submit affidavits to the court. In their affidavits they will state that they will use the information only for the limited purpose of this litigation; and that they agree not to disclose the information to or discuss it with persons other than Mr. Welch and the persons appearing on the list that Mr. Welch submits to the court.

All persons given access to the confidential information are to be aware from the outset that if

[2001] FMSC 16; [10 FSM Intrm. 279]

they violate the protective order, they will be subject to sanction.

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