2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2)

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1/28/24,3:08 PM Save Sunset Beach Coalition v.City and County of Honolulu,78 P.3d 1 -Haw:Supreme Court 2003-Google Scholar [37]In conclusion number 6,see supra note 19,the court held that"Plaintiffs have not demonstrated nor does the evidence show that these measures or procedures were inconsistent with and/or violated...HRS Chapter 205[.]" [38]The City takes"no position"on the issue of the protective order. `391 The work product doctrine was largely articulated by the United States Supreme Court in Hickman v.Tavlor,329 U.S.495,67 S.Ct.385,91 L.Ed.451(1947).That Court held that without a showing of necessity,most "written statements,private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties"were not otherwise discoverable.Id.at 510,67 S.Ct.385. [40]We acknowledge the controversy over whether materials given to a testifying expert witness are discoverable,even if these materials may otherwise fall under the work-product privilege.The genesis of this controversy rests upon the language of the Federal Rules of Civil Procedure(FRCP)Rule 23(b)(3),upon which the HRCP are based upon.FRCP rule 23(b)(3)implies that in the interest of broad discovery of information regarding a testifying expert witness,all materials provided to such a witness including items protected by the work-product rule,are discoverable.See D.Oishi,A Piece of Mind for Peace of Mind:Federal Discoverability of Opinion Work Product Provided to Expert Witnesses and its implications in Hawaii,24 U.Haw.L.Rev.859,884-85(2002)(observing the current split among the circuits and recommending that Hawaii"adapt the bright-line rule"of requiring discovery);see also B�gosian v.Gulf Oil GorR,738 F.2d 587,594(3rd Cir.1984)(analyzing identical language to HRCP Rule 26 and concluding that the work product privilege rule is not subscribed by FRCP Rule 26(b)(4));Intermedics Inc.vInc.v.Ventritex lncInc.,139 F.R.D.384 3, 990(N.D.Cal.1991),(rejecting Bagcsian and concluding that the drafters of the rules desired to allow a"fair opportunity to expose whatever weaknesses, unreliabilities,or biases[that]might infect the opinions of testifying experts called by adverse parties").As the present memorandum does not appear to fall under the work product rule,see supra,we need not address these issues. [41]We note that it is unknown whether Obayashi made the disclosure,or some other party. Save trees-read court opinions online on Google Scholar. https://scholar.google.com/scholar_case?case=3834089830730945441&q=regulates+permissible+land+uses&hl=en&as_sdt=4,12 11/11