Pt. Alorinda Shipping v Alorinda 251 [2017] FMSC 44; 21 FSM R. 410 (Yap 2017) (20 November 2017)

FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2017-3000

PT. ALORINDA SHIPPING, )
)
Plaintiff, )
)
vs. )
)
ALORINDA 251, her tackle, machinery, )
equipment and appurtenances, etc., )
)
In Rem Defendant, )
)
FEDERATED STATES OF MICRONESIA, LUKNER )
WEILBACHER, in his capacity as Secretary of the )
Department of Transportation, Communication & )
Infrastructure, YAP STATE GOVERNMENT, )
TONY GANNGIYAN in his capacity as Governor )
of Yap State, YAP FISHING AUTHORITY, and )
WAAB TRANSPORTATION COMPANY, )
)
In Personam Defendants. )
_____________________________________________ )

PROTECTIVE ORDER

Larry Wentworth
Associate Justice

Decided: November 20, 2017

APPEARANCES:

For the Plaintiff: Michael J. Sipos, Esq.
P.O. Box 2069
Kolonia, Pohnpei FM 96941

For the Defendants: Ronald Moroni, Esq.
(Yap, Ganngiyan, & Assistant Attorney General
Yap Fishing Auth.) Office of the Yap Attorney General
P.O. Box 435
Colonia, Yap FM 96943

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HEADNOTE

Civil Procedure Depositions; Civil Procedure Discovery Protective Order

When the would-be deponent is the chief executive officer of a sovereign state, the court will issue a protective order barring the deposition since the party seeking discovery has not shown that relevant evidence on essential issues could not be obtained through alternative sources or less burdensome means. If, at some later time, that party shows that the Governor has relevant evidence on essential issues that cannot be obtained through alternative sources or less burdensome means, the court will consider limited alternative discovery means on that narrow topic. Pt. Alorinda Shipping v. Alorinda 251, 21 FSM R. 410, 411 (Yap 2017).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

The plaintiff, Pt. Alorinda Shipping, has noticed the deposition of Yap Governor Tony Ganngiyan for December 11, 2017. The Yap state defendants (the Yap State Government, Governor Tony Ganngiyan, and the Yap Fishing Authority), on November 6, 2017, citing numerous U.S. case authorities, moved for a protective order barring his deposition.

The court, however, need only rely on analogous FSM case authority. In FSM v. GMP Hawaii, Inc., 16 FSM R. 508 (Pon. 2009), when the plaintiff sought to depose the FSM President, the court granted a protective order barring, on separation of powers and executive privilege grounds, the President’s deposition. Id. at 511-12. But since only the president, and no alternative source, was available to corroborate one witness’s testimony, the GMP, Hawaii court limited discovery from the president to this one narrow topic to be conducted "through either a Rule 31 deposition upon written questions or Rule 33 written interrogatories." Id. at 513.

Similar considerations are present here where the would-be deponent is the chief executive officer of a sovereign state. Accordingly, the court will issue a similar protective order. NOW THEREFORE IT IS HEREBY ORDERED that Pt. Alorinda Shipping, not having shown that relevant evidence on essential issues could not be obtained through alternative sources or less burdensome means, cannot depose Yap Governor Tony Ganngiyan. If, at some later time, Pt. Alorinda Shipping shows that Yap Governor Tony Ganngiyan has relevant evidence on essential issues that cannot be obtained through alternative sources or less burdensome means, the court will consider limited alternative discovery means on that narrow topic.

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