Federated States of Micronesia v GMP Hawaii, Inc. [2009] FMSC 35; 16 FSM Intrm. 508 (Pon. 2009) (20 July 2009)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-004

FEDERATED STATES OF MICRONESIA,
Plaintiff-Counterdefendant,

vs.

GMP HAWAII, INC., a Hawaii corporation, d/b/a GMP ASSOCIATES,
Defendant-Counterclaimant.

___________________

PROTECTIVE ORDER

Dennis K. Yamase
Associate Justice

Decided: July 20, 2009

APPEARANCES:

For the Plaintiff: Johnson Asher, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Daniel M. Benjamin, Esq. (pro hac vice)
Calvo & Clark LLP
259 Martyr Street, Suite 100
Hagatna, Guam 96910

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HEADNOTES

Civil Procedure  Discovery; Evidence  Privileges
Since the rule with respect to privileges applies at all stages of all actions, cases, and proceedings, it therefore applies during discovery. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Evidence  Privileges
Except as otherwise required by the FSM Constitution or provided by Act of Congress or in rules prescribed by the Chief Justice, the privilege of a witness, person, government, state, or political subdivision thereof is governed by the principles of the common law as they may be interpreted by FSM courts in the light of reason and experience. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Civil Procedure  Discovery; Evidence  Privileges
The government, by instituting an action, does not waive any privilege it may have and thereby submit to unlimited discovery. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Evidence  Privileges; Separation of Powers  Executive Powers
Although it may be true in the general case that when the FSM is claiming executive privilege it has an initial duty to provide a sworn declaration demonstrating that the discovery at issue is privileged, but when discovery is sought from a president, no such declaration will be required since presidential communications are "presumptively privileged." This is because a court is not required to proceed against the president as against an ordinary individual. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Separation of Powers  Executive Powers
The FSM president is not only the head of a co-equal branch of government, but is also both the FSM's head of state and head of government. The vice president functions either as an acting president or as one in waiting, who is keeping himself informed and prepared should some unfortunate event occur that would require him to act as president. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Evidence  Privileges; Separation of Powers  Executive Powers
Although a former president may not retain the capacity to either assert or waive an executive privilege, an incumbent president can claim the privilege on his predecessor's behalf. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 511 (Pon. 2009).

Separation of Powers
The concept of separation of powers is inherent in the FSM Constitution's structure. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Constitutional Law  Interpretation; Separation of Powers
The FSM Constitution's separation-of-powers structure is derived from that in the U.S. Constitution. The similarities of the FSM and the U.S. Constitutions mandate that the FSM Supreme Court will give particular consideration to U.S. constitutional analysis, especially at the time of the Micronesian Constitutional Convention and of the Constitution's adoption. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 n.1 (Pon. 2009).

Evidence  Privileges; Separation of Powers  Executive Powers
The presidential executive privilege is rooted in the separation of powers doctrine and in the principle that confidentiality in communications between the president and his advisors should enhance the quality of discussion and government decisions. However, this presumptive privilege is not absolute and must be considered in the light of the rule of law. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Evidence  Privileges
While the public and the courts have a right to every person's evidence, except for that protected by constitutional, statutory, or other privilege, these privileges are not expansively construed. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Civil Procedure  Discovery; Evidence  Privileges; Separation of Powers  Executive Powers
A party seeking discovery, who is confronted with an executive privilege claim, may overcome that claim if the discovery would 1) lead to admissible evidence; 2) is essential to the party's case; 3) is not available through any alternative source or less burdensome means; and 4) will not significantly interfere with the official's ability to perform his governmental duties. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Civil Procedure  Depositions; Evidence  Privileges; Separation of Powers  Executive Powers
When the plaintiff contends that the depositions of the president, vice president, and former president would yield admissible evidence about the discussions during high-level national-state government meetings on replacing the plaintiff as the Project Management Unit since the presidents and vice president were the only persons present at all of those meetings and should thus have unique, relevant testimony, the plaintiff has not met its burden to show that information about those meetings cannot be obtained through alternative sources or less burdensome means since a number of other persons were present at each of those meetings. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Civil Procedure  Discovery; Evidence  Privileges
When the plaintiff has corroborating testimony from two witnesses, it has not shown why the former president's testimony on the same subject is essential to its case or that what it seeks to obtain from him it has not already obtained from the alternative sources. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512 (Pon. 2009).

Civil Procedure  Discovery; Evidence  Privileges
When the president has unique, personal knowledge of an essential relevant issue because only the president, and no alternative source, is available to corroborate testimony, the court will limit discovery from the president to this one narrow topic. Since discovery will be limited to this one narrow point, the president's oral deposition will be more burdensome than needed. The court will therefore craft a protective order so that another means of discovery will be used  the plaintiff may seek discovery from the president through either a Rule 31 deposition upon written questions or through Rule 33 written interrogatories, whichever the plaintiff finds best-suited to its purposes. FSM v. GMP, Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512-13 (Pon. 2009).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This comes before the court on the plaintiff's motion for protective order, filed June 22, 2009, and the defendant's opposition thereto, filed July 6, 2009. The plaintiff did file a reply. The plaintiff Federated States of Micronesia moves, pursuant to Civil Procedure Rule 26(c), for an order barring the defendant, GMP Hawaii, Inc. ("GMP"), from taking the depositions of President Emmanuel (Manny) Mori, Vice-President Alik L. Alik, and former President (currently Congressman) Joseph J. Urusemal. The motion is granted in part and denied in part. GMP's notices of deposition are vacated. The court's explanation follows.

I.

GMP has noticed the depositions of President Mori, Vice-President Alik, and former President Urusemal. It seeks to depose them concerning the termination of the contract between the FSM and GMP. The FSM asserts that executive privilege should bar the noticed depositions because the persons sought to be deposed were the executive heads of this federation.

GMP concedes the existence of an executive privilege. Nevertheless, it contends that the FSM's motion must be denied because, in its view, the FSM has failed to satisfy an initial duty to provide a sworn declaration demonstrating that the discovery at issue is privileged, and because, even if the required initial showing were made, executive privilege is not absolute and must yield when the discovery sought is unique, relevant information which cannot be obtained through other means.

II.

"The rule with respect to privileges applies at all stages of all actions, cases, and proceedings." FSM Evid. R. 1101(c). It therefore applies during discovery. The general rule is that

Except as otherwise required by the Constitution of the Federated States of Micronesia or provided by Act of Congress or in rules prescribed by the Chief Justice pursuant to Article XI of the Constitution, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the Federated States of Micronesia in the light of reason and experience . .㼠.

FSM >FSM Evid. R. 501. The parties seem to agree, and the court concludes, that the government, by instituting action, has not waived any privilege it may have and thereby submitted to unlimited discoviscovery. Cf. Wirtz v. Continental Fin. & Loan Co., [1964] USCA5 32; 326 F.2d 561, 563 (5th Cir. 1964).

GMP contends that the FSM has an initial duty to provide a sworn declaration demonstrating that the discovery at issue is privileged. However true this is in the general case, GMP, in this case, seeks discovery from president(s). Since presidential communications are "presumptively privileged," Nixon v. Sirica, [1973] USCADC 472; 487 F.2d 700, 717[1973] USCADC 472; , 19 A.L.R. Fed. 343, 364 (D.C. Cir. 1973), approved of, United States v. Nixon, [1974] USSC 159; 418 U.S. 683, 708[1974] USSC 159; , 94 S. Ct. 3090, 3108[1974] USSC 159; , 41 L. Ed. 2d 1039, 1064 (1974), no such declaration will be required in this case.

This is because a court is not "required to proceed against the president as against an ordinary individual." United States v. Burr, 25 Fed. Cas. 187, 192 (D. Va. 1807) (No. 14,694) (Marshall, C.J.). The FSM president is not only the head of a co-equal branch of government, but is also both the FSM's head of state and head of government. The vice president, especially in the situations about which discovery is sought, functions either as an acting president or as one in waiting, who is keeping himself informed and prepared should some unfortunate event occur that would require him to act as president. And, although a former president may not retain the capacity to either assert or waive an executive privilege, an incumbent president can, as was done here, claim the privilege on his predecessor's behalf. Halperin v. Kissinger, 401 F. Supp. 272, 274 (D.D.C. Cir. 1975).

III.

The concept of separation of powers is inherent in the FSM Constitution's structure.[1] Pohnpei Cmty. Action Agency v. Christian, [2002] FMSC 15; 10 FSM Intrm. 623, 630 (Pon. 2002). The presidential executive privilege is rooted in the separation of powers doctrine and in the principle that confidentiality in communications between the president and his advisors should enhance the quality of discussion and government decisions.

However, this presumptive privilege is not absolute and must be considered in the light of the rule of law. While the public and the courts have a right to every person's evidence, except for that protected by constitutional, statutory, or other privilege, these privileges are not expansively construed. Nixon, 418 U.S. at 709-10, 94 S. Ct. at 3108, 41 L. Ed. 2d at 1064-65.

The parties, in their filings, agree that a party seeking discovery, who is confronted with an executive privilege claim, may overcome that claim if the discovery would 1) lead to admissible evidence; 2) is essential to the party's case; 3) is not available through any alternative source or less burdensome means; and 4) will not significantly interfere with the official's ability to perform his governmental duties. The court concludes that this is an appropriate test in this case.

IV.

GMP contends that the depositions of the president, vice president, and former president would yield admissible evidence about the discussions during high-level national-state government meetings on replacing GMP as the Project Management Unit since the presidents and vice president were the only persons present at all of those meetings and should thus have unique, relevant testimony. However, since a number of other persons were present at each of those meetings, GMP has not met its burden to show that information about those meetings cannot be obtained through alternative sources or less burdensome means.

GMP also contends that its proposed depositions would yield, as testified to by Robert Westerfield and former Secretary Yatilman, admissible evidence about why the former president did not terminate GMP's contract. GMP has corroborating testimony from Westerfield and Yatilman. It has not shown why the former president's testimony on the same subject is essential to its case or that what it seeks to obtain from him it has not already obtained from the alternative sources of Westerfield and Yatilman.

GMP also contends that the president has unique, personal knowledge of an essential relevant issue because the FSM alleges that GMP, through an unidentified agent, offered a gratuity of a hotel room to then Secretary Yatilman and that Yatilman testified that the only person he had mentioned this incident to was the president. Since only the president, and no alternative source, is available to corroborate Yatilman's testimony, the court will limit discovery from the president to this one narrow topic. FSM Civ. R. 26(c)(4).

Since this order will limit discovery sought to this one narrow point, the court views the president's noticed oral deposition as more burdensome than needed. It will therefore craft this protective order so that another means of discovery will be used. FSM Civ. R. 26(c)(3). GMP may seek discovery from the president about Secretary Yatilman's alleged statement to him about a gratuity from GMP through either a Rule 31 deposition upon written questions, see AHPW, Inc. v. FSM, [2001] FMSC 35; 10 FSM Intrm. 420, 426 (Pon. 2001), or through Rule 33 written interrogatories, whichever GMP finds best-suited to its purposes.

Protective Order

GMP, not having shown that relevant evidence on essential issues could not be obtained through alternative sources or less burdensome means, cannot depose President Mori, Vice President Alik, or former president Urusemal, but may, through either a Rule 31 deposition upon written questions or Rule 33 written interrogatories, seek discovery of the president concerning Secretary Yatilman's communication to him about an alleged gratuity offered to Yatilman by GMP.

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^[1]This separation-of-powers structure is derived from that in the U.S. Constitution. The similarities of the FSM and the U.S. Constitutions mandate that the FSM Supreme Court will give particular consideration to U.S. constitutional analysis, especially at the time of the Micronesian Constitutional Convention and of the Constitution’s adoption. Paul v. Celestine, [1990] FMSC 2; 4 FSM Intrm. 205, 208 (App. 1990); Laion v. FSM, [1984] FMSC 9; 1 FSM Intrm. 503, 523 (App. 1984). This executive privilege claim is a case of first impression in the FSM. Hence, the references to U.S. constitutional jurisprudence in this order.