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 democratic society,considerations flowing from our coequal and coexistent system of government,dictate that we accord those charged with drafting and administering our laws a reasonable opportunity to craft and enforce them in a manner that produces a lawful result."Bremner,96 Hawai'i at 144,28 P.3d at 360(internal citations,brackets and quotation marks omitted)(citing Life of the Land,63 Haw.166,172,623 P.2d 431,438(1981)). In this case,Obayashi claims it will comply with HRS chapter 205.The City represents that it will enforce the appropriate statutes and ordinances and allow only the most restrictive use of the land in the event of a conflict.Under these circumstances,we affirm the court's grant of summary judgment on Count VI but on the ground that Count VI is not ripe for decision.1371 See Enos v Pacific Transfer&Warehouse,Inc.,79 Hawai'i 452,459,903 P.2d 1273,1280(1995),reconsideration denied(Oct.16,1995)(noting that "it is well-settled that'[a]n appellate court may affirm a judgment of the lower court on any ground in the record which supports affirmance"')(Quoting Strouss v Simmons,66 Haw.32,40,657 P.2d 1004,1010(1982)(citations omitted)).This should not,however,bar Plaintiffs from raising this issue again as may be appropriate.See,e.g., The Skull Valley Band of Goshute Indians v Leavitt,215 F.Sul2p.2d 1232,1252(D.Utah 2002).(noting that a determination of ripeness is final,"absent a change in factual circumstances 20 relating to the ripeness issue")(citing Solar v Merit Sys.Protection Bd.,*20 600 F.Supn.535,536(S.D.Fla.1984).);Johnston Ambulatory Surgical Assocs.,Ltd.v.Nola n,755 A.2d 7 ,813(R.I 2000)(noting that a"change in material circumstances"prevented application of res judicata to a previously made ripeness decision). XIII. Plaintiffs'remaining issue on appeal concerns the court's protective order of a memorandum prepared by Obayashi's attorneys,and transmitted to an expert witness who listed it as a reference in a publicly issued EIS.t381 We review a trial court's ruling on a motion to compel discovery under an abuse of discretion standard.See,e.g.,Hac v.University of Hawaii,102 Hawaii 92,100-01,73 R3d 46,54-55(2003)(citations omitted)."An abuse of discretion occurs when the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant."Id.(citations omitted). A. As a preliminary matter,it is necessary to distinguish between the attorney-client and the work-product privileges.The attorney-client privilege is codified in the Hawai'i Rules of Evidence(HRE)Rule 503,which provides that a client"has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]"HIRE Rule 503(b);see also DiCenzo v Izawa 68 Haw.528 535 723 P.2d 171 175 1986)(noting that prior to codification,the"common-law attorney-client privilege[has been]long recognized by the courts of Hawaii").The underlying principle of this privilege is to"encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice[.]"State v Wong,97 Hawai'i 512,518,40 P.3d 914,920(2002).(quoting United States v Zolin 491 U.S.554,562,109 S.Ct.2619,105 L.Ed.2d 469 .(1989));see also DiCenzo 68 Haw.at 535,723 P.2d at 175(explaining that"lawyers can act effectively only if they are fully advised of the facts by the parties they represent and disclosure will be promoted if the client knows that what he tells his lawyer cannot be extorted from the lawyer"(internal quotation marks,brackets,and ellipses omitted)). On the other hand,the work-product privilege has its foundation in HRCP Rule 26,01 which states that parties"may obtain discovery regarding any matter,not privileged," (emphasis added),and indicates that"discovery of documents and tangible things...prepared in anticipation of litigation or for trial"shall be disclosed only upon a showing of "substantial need of the materials"and"undue hardship"in obtaining the materials in another fashion.HRCP Rule 26(b)(3).Further,"[i]n ordering discovery of such materials when the required showing has been made,the court shall protect against disclosure of the mental impressions,conclusions,opinions,or legal theories of an attorney or other representative of a party concerning the litigation."HRCP Rule 26(b)(3). Although Obayashi repeatedly states that the memorandum contains"legal analysis,legal impressions and legal conclusions"there is no indication that it was prepared in anticipation of litigation.We must conclude then that the work-product privilege is inapplicable.I401 B. To come within the attorney-client privilege,the communication must be a"confidential communication made for the purpose of facilitating the rendition of professional legal 21 services"between appropriate*21 parties as stated in HIRE Rule 503(b).Accordingly,a communication occurring in the following manner is privileged: (1)where legal advice of any kind is sought(2)from a professional legal adviser in his[or her]capacity as such,(3)the communication relating to that purpose, (4)made in confidence(5)by the client,(6)are at his[or her]instance permanently protected(7)from disclosure by himself or by the legal adviser,(8)except the protection be waived. Sapp v Wong 62 Haw.34 38 609 P.2d 137 140(1980)(quoting 8 Wigmore,Evidence,§2292(McNaughton rev.1961)).However,as in Sapp,a reviewing court may determine that under the circumstances of the case that there was an invocation of the privilege.See Sapp 62 Haw.at 39 609 P.2d at 141 ("We,however,go farther than deciding that the proper determinations were not made.Under the circumstances of this case,...[the comments]fall within the ambit of the privilege[.]").Here,it was apparent that the memorandum was prepared on behalf of a representative of Obayashi in an effort to ensure that the proposed development met all applicable laws and Obayashi's needs.As such,the allegations sufficiently met the requirement that the memorandum was a confidential communication made for the purpose of facilitating the rendition of a legal service for Obayashi between Obayashi's representative and a lawyer.HIRE Rule 503(b).As such,we conclude that it was not an abuse of discretion to determine that the memorandum was privileged. XIV. Plaintiffs assert that the disclosure of the memorandum to an expert witness and the subsequent citation to the memorandum in a public document waived any privilege.HIRE Rule 511 governs the waiver of privilege through a"voluntary"disclosure,and states: A person upon whom these rules confer a privilege against disclosure waives the privilege if,while holder of the privilege,the person or the person's predecessor voluntarily discloses or consents to disclosure of any significant part of the privileged matter.This rule does not apply if the disclosure itself is a privileged communication. HIRE Rule 511(emphasis added).The commentary to this rule explains that"[a]ny intentional disclosure by the holder of the privilege defeats[the purpose of the privilege]and eliminates the necessity for the privilege in that instance."Thus,a waiver analysis would focus on whether the disclosure was voluntary.Cf.Territo v.Cabrinha,24 Haw.621, . ................................................................ 626(1919)(expressing that"[i]n all cases where a personal privilege exists for a witness to testify or not,if such witness does testify without objection he will be deemed to have done so voluntarily"(citation omitted));Takamori v Kanai,11 Haw.1,2(1897),(holding that the act of"voluntarily"putting defendant's counsel on the witness stand waived the claim of privileged communication). https://scholar.google.com/scholar_case?case=3834089830730945441&q=regulates+permissible+land+uses&hl=en&as_sdt=4,12 7/11