Adams v Island Homes Construction Inc [2002] FMSC 9; 10 FSM Intrm. 430 (Pon. 2001) (27 February 2002)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

Cite as Adams v. Island Homes Constr., Inc.,
[2002] FMSC 9; 10 FSM Intrm. 430 (Pon. 2001)

[2002] FMSC 9; [10 FSM Intrm. 430]

YVETTE ETSCHEIT ADAMS, d/b/a POHNPEI
ACE HARDWARE, and ADAMS BROTHERS
CORPORATION,
Plaintiffs,

vs.

ISLAND HOMES CONSTRUCTION, INC., FSM
DEVELOPMENT BANK and PAULUS PERMAN,
Defendants.

CIVIL ACTION NO. 2000-012

ORDER AND MEMORANDUM

Martin Yinug
Associate Justice

Decided: October 19, 2001
Amended: February 27, 2002

APPEARANCES:

For the Plaintiffs:
Craig D. Reffner, Esq.
Law Office of Fredrick L. Ramp
P.O. Box 1480
Kolonia, Pohnpei FM 96941

[10 FSM Intrm. 431]

For the Defendant (Island Homes):
Salomon Saimon, Esq.
Law Offices of Saimon & Associates
P.O. Box 1450
Kolonia, Pohnpei FM 96941

For the Defendant (FSM Dev. Bank):
James P. Woodruff, Esq.
P.O. Box M
Kolonia, Pohnpei FM 96941

For the Defendant (Perman):
Martin F. Mix, Esq.
P.O. Box 143
Kolonia, Pohnpei FM 96941

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HEADNOTES

Civil Procedure ; Discovery
Matter is discoverable if it is relevant and not privileged. Information is discoverable if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Adams v. Island Homes Constr., Inc., [2002] FMSC 9; 10 FSM Intrm. 430, 432 (Pon. 2001).

Civil Procedure ; Discovery
When each paragraph of a discovery request begins by using the phrase "relating to" in a general sense, and each paragraph goes on to describe specific categories of information, the request is not overbroad. Adams v. Island Homes Constr., Inc., [2002] FMSC 9; 10 FSM Intrm. 430, 432 (Pon. 2001).

Civil Procedure ; Discovery
If a party has any of the documents asked for in a discovery request, it should produce them; if it does not, it should so indicate. Adams v. Island Homes Constr., Inc., [2002] FMSC 9; 10 FSM Intrm. 430, 432 (Pon. 2001).

Civil Procedure ; Discovery; Civil Procedure ; Sanctions
Rule 37(a)(4) requires an opportunity for hearing before attorney's fees are awarded to a party who has prevailed on a motion to compel discovery. Courts may comply with this requirement either by holding an oral hearing on adequate notice, or by considering written submission from the affected parties. Adams v. Island Homes Constr., Inc., [2002] FMSC 9; 10 FSM Intrm. 430, 432 (Pon. 2001).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

On July 30, 2001, Plaintiffs filed their motion to compel discovery in this case. Subsequent motions and other submissions were filed by various parties, with the latest being the submission filed on October 5, 2001, by defendant Island Homes Construction, Inc. ("Island Homes"). According to the submission filed by the plaintiffs on September 26, 2001, some previously outstanding discovery requests have been complied with. However, plaintiffs are still seeking compliance by the defendant FSM Development Bank ("the Bank") and Island Homes with plaintiff's first discovery request dated May 7, 2001. Also, plaintiffs, as of their last submission, were also seeking compliance by Island

[10 FSM Intrm. 432]

Homes with plaintiffs' second discovery request. However, the court is advised by the court clerk in Pohnpei that Island Homes filed its response to the plaintiffs' second discovery request on October 5, 2001. The court assumes for present purposes that the second discovery request as to Island Homes is no longer at issue. That leaves only compliance with the first discovery request by Island Homes and the Bank.

Rule 26(b)(1) of the FSM Rules of Civil Procedure provides that matter is discoverable if it is relevant and not privileged. Further, information is discoverable "if the information sought appears reasonably calculated to lead to the discovery of admissible evidence."

The first discovery request seeks the production of documents and consists of four paragraphs. The version of the request directed to the Bank and the version of the request directed to Island homes are identical, except for some slight variance in wording in the fourth paragraph that reflects the fact that the request is directed to different parties. The Bank contends that the request directed to it is overbroad. While each paragraph begins by using the phrase "relating to" in a general sense, each paragraph also goes on to describe specific categories of information. In the useful case cited by the Bank, Schartz v. Unified School District No. 512, et al., Civ. A. 95-2491-EEO, 1996 U.S. Dist. LEXIS 19123, at *3 (D. Kan. Dec. 18, 1996), the court held that where the phrase "relating to" in context "modifies a sufficiently specific type of information," it is not overbroad. Thus, the challenged requests are not overbroad as to the Bank.

For its part, Island Homes seems to make conflicting statements in its opposition to the motion to compel. It says that it "does not have any records on this particular matter." But at the same time, Island Homes also states that "[i]f the plaintiffs would be more specific, then Island Homes could perhaps understand what it is being requested to produce." Opp'n to Motion to Compel Def. Island Homes Constr., Inc. at 3 (Aug. 2, 2001). The court finds that the qualifying language used in the four paragraphs of the discovery request is sufficiently specific. Either Island Homes does or does not have any of the documents listed. If it has, it should produce them; if it does not, it should so indicate.

Accordingly, the Bank is ordered to provide the documents requested under the first discovery request within 15 days of the date of this order. Similarly, Island Homes should also provide any documents, if it has them, within that time.

Plaintiffs seek their attorney fees incurred in bringing the motion to compel discovery. Rule 37(a)(4) of the FSM Rules of Civil Procedure provides that the party against whom such fees are sought must be given an "opportunity for hearing" before fees are imposed. "Courts may comply with this requirement [to provide opportunity for hearing] either by holding an oral hearing on adequate notice, or by considering written submission from the affected parties." 7 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 37.23[6]ed. 1999) (footnotetnote omitted). In this instance the court will hold a hearing at the time of trial on the question of the attorney fees that plaintiffs incurred in bringing their motion to compel.

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