Mori v Hasiguchi [2012] FMSC 10; 18 FSM Intrm. 188 (Chk. 2012) (14 February 2012)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2008-1111

EMANUEL "MANNY" MORI,
Plaintiff,

vs.

MYRON HASIGUCHI and TRUK TRANSPORTATION CO., INC.,
Defendants,

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TRUK TRANSPORTATION CO., INC.,
Counterclaimant,

vs.

EMANUEL "MANNY" MORI,
Counter-Defendant,

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TRUK TRANSPORTATION CO., INC.,
Third-Party Plaintiff,

vs.

MARION OLTER and LISA OLTER,
Third-Party Defendants.
__________________________________________

ORDER CONCERNING DISCOVERY

Ready E. Johnny
Associate Justice

Decided: February 14, 2012

APPEARANCE:

For the Plaintiff: Sabino S. Asor, Esq.

P.O. Box 95

Weno, Chuuk FM 96942

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HEADNOTES

Civil Procedure - Depositions
It is expected that a party in civil litigation will be deposed during the course of discovery. This is particularly true of a plaintiff. Mori v. Hasiguchi, [2012] FMSC 10; 18 FSM Intrm. 188, 190 (Chk. 2012).

Civil Procedure - Depositions; Civil Procedure - Discovery
The President, even as a private litigant, is not an ordinary person. He must be granted some accommodation while at the same time balancing that accommodation with the adverse parties' right to discovery from a plaintiff. Mori v. Hasiguchi, [2012] FMSC 10; 18 FSM Intrm. 188, 190 (Chk. 2012).

Civil Procedure - Discovery
The discovery rules encourage the parties to conduct discovery with a minimum of court involvement or intervention. Mori v. Hasiguchi, [2012] FMSC 10; 18 FSM Intrm. 188, 190 (Chk. 2012).

Civil Procedure - Depositions
When the deposition subpoena of the President, as a private civil plaintiff, has been quashed only to the extent that the deposition date is vacated, the parties' counsel shall confer to agree on a date and time when it is expected that the plaintiff President will be able to devote several hours to being deposed. Mori v. Hasiguchi, [2012] FMSC 10; 18 FSM Intrm. 188, 190 (Chk. 2012).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

This comes before the court on Plaintiff Mori's Motion for Enlargement of Time for Discovery and for Pre-Trial Motions and on Plaintiff Mori's Motion to Quash Subpoena and for Protective Order, both filed February 13, 2012. Mori asks that the subpoena for his deposition, scheduled for February 15, 2012, be quashed and that a protective order be issued so that he is permitted to answer written deposition questions instead and that the discovery deadlines be enlarged to accommodate this. Mori notes that he expects to be extremely busy in his official duties as FSM President during the week of February 13, 2012 and cannot accommodate the time for a lengthy deposition.

In FSM v. GMP Hawaii, Inc., [2009] FMSC 35; 16 FSM Intrm. 508, 512-13 (Pon. 2009), the president, because he was president, had unique, personal knowledge of an essential relevant issue and no alternative source was available to corroborate certain testimony, so the court could limit discovery from the president to that one narrow topic and since discovery was limited to one narrow point, the president's oral deposition was more burdensome than needed. The court therefore ordered that another means of discovery be used - either a Rule 31 deposition upon written questions or Rule 33 written interrogatories, whichever the plaintiff found best-suited to its purposes. Id. at 513.

But in this case, Mori is a private individual and a plaintiff seeking relief from the courts, not a potential witness in a case involving official government acts. This is a critical distinction. Furthermore, the information that the parties seeking to depose him may seek, is not limited to one narrow point.

It is expected that a party in civil litigation will be deposed during the course of discovery. FSM Dev. Bank v. Adams, [2006] FMSC 21; 14 FSM Intrm. 234, 254 (App. 2006). This is particularly true of a plaintiff. McGillivray v. Bank of the FSM (II), [1994] FMSC 29; 6 FSM Intrm. 486, 488 (Pon. 1994) (a defendant is entitled to depose a plaintiff since the plaintiff has chosen to file the lawsuit). Nonetheless, Mori, even as a private litigant, is not an ordinary person. He must be granted some accommodation while at the same time balancing that accommodation with the adverse parties' right to discovery from a plaintiff.

Since the discovery rules encourage the parties to conduct discovery with a minimum of court involvement or intervention, People of Tomil ex rel. Mar v. M/C Jumbo Rock Carrier III, [2010] FMSC 8; 17 FSM Intrm. 64, 68 (Yap 2010) (sanctions are provided to discourage an abuse or breakdown of the discovery process that would require court involvement), now therefore it is hereby ordered that the motion to quash is granted only to the extent that the deposition date is vacated. The parties' counsel shall confer (and plaintiff's counsel shall confer with his client) to agree on a date and time, within the next 45 days, when it is expected that plaintiff Mori will be able to devote several hours to being deposed. Mori's motion for a protective order is accordingly denied. He has not shown adequate grounds not to produce the documents requested, if those documents exist.

And it is further ordered that because Mori's deposition date is vacated and will be reset by the parties' agreement, Mori's motion to enlarge discovery is granted and the following schedule is set:

1) all discovery shall be completed by April 19, 2012;

2) any further pretrial motions must be filed and served by May 15, 2012; and

3) if needed, a date and time for hearing pretrial motions will be set by later court order.

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