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 XV. The effect of an inadvertent disclosure of information upon the attorney-client privilege has not been decided in this jurisdiction.It appears that there is no consensus among other jurisdictions as to whether an inadvertent disclosure constitutes a voluntary or intentional disclosure.See,generally,J.Hundley,Waiver of Evidentiary Privilege by 22 Inadvertent Disclosure-State Law,51 A.L.R.5th 603,634,1998 WL 2606(1997)*22(noting three principal approaches to this problem:(1)strict responsibility for the disclosure;(2)no disclosure as there is no intentional relinquishment of the privilege;and(3)consideration of a multitude of factors to determine voluntariness of the disclosure);see,e.g.,Alldread v.City of Grenada,988 F.2d 1425,1434(5th Cir.1993)(following a"majority of courts"in looking to"the facts surrounding a particular disclosure");Manufacturers and Traders Trust Co.v Servotronics,Inc.,132 A.D.2d 392,_M,522 N.Y.S.2d 999(N.Y.Apn.Div.1987)(holding that"[i]ntent must be the primary component of any waiver test"); gett v.Commonwealth,252 Va.79,472 S.E.2d 263,2�(1996)(explaining that when a"communication takes place under circumstances such that persons outside the privilege can overhear what is said"waives the attorney-client privilege);cf State v Soto,84 Hawai'i 229,239-41,933 Pi 66,76-78(1997) (holding that communications between a criminal defendant and her counsel knowingly conducted in a public hallway of the circuit courthouse in the presence of a confidential informant who was not a member of the defense team were not protected by the attorney-client privilege because they were not"confidential"). "Traditionally,courts have held that inadvertent disclosure waives the privilege because the client and attorney possess sufficient means to preserve the secrecy of a communication and because disclosure makes achievement of the benefits of the privilege impossible."Manufacturers and Traders,132 A.D.2d at 398,522 N.Y.S.2d 999;see also Apex Municipal Fund v.N-Group Securities,841 F.Supp.1423,1432(S.D.Tex.1993)("Under the traditional approach an inadvertent disclosure automatically waived the privilege.");8 Wigmore,Evidence§2325 at 633(McNaughton rev.1961)("All involuntary disclosures,in particular,through the loss or theft of documents from the attorney's possession,are not protected by the privilege,on the principle that,since the law has granted secrecy so far as its own process goes,it leaves to the client and attorney to take the measures of caution sufficient to prevent being overheard by third persons.The risk of insufficient precautions is on the client."). It would appear the traditional test has been rejected in Hawaii.HIRE Rule 511 provides that a disclosure must be"voluntary[,]"thus indicating that a disclosure that is involuntary would not result in a loss of privilege.Moreover,it has been observed that the traditional approach appears to be unduly harsh inasmuch information could be prevented from being introduced into court"at least prior to the time that remedying an accidental production would cause the adversary any prejudice[.]"Manufacturers and Traders,132 A.D.2d at 398,522 N.Y.S.2d 999(citations omitted). Other courts have stated that only the client can waive the privilege,and thus inadvertent disclosures by an attorney or a representative cannot amount to a voluntary waiver. U KL Grp n v.Case,Kay&Lys,829 F.2d 909(9th Cir.1987)is illustrative,insofar as the Ninth Circuit applied HIRE Rule 511 in a diversity case involving a Hawai'i party.In KL Group,a letter between a law firm and its client was inadvertently produced among 2,000 other documents during the course of discovery.Id.at 917.The ninth circuit noted that only the client held the right of the privilege.Thus that court held that"under either Hawai'i or California law,[the client]did not waive its attorney-client privilege by[the law firm's]production of the letter."Id.at 919. We believe that this approach,however,ignores the fact that an attorney acts as an agent and may possess the authority to bind the client.Instead,the modern approach, which we choose to adopt,is that"consideration is given to all of the circumstances surrounding the disclosure[.]"Alldread 988 F.2d at 1433.Under such an approach,a court may consider the following factors:"(1)the reasonableness of precautions taken to prevent disclosure;(2)the amount of time taken to remedy the error;(3)the scope of discovery;(4)the extent of the disclosure;and(5)the overriding issue of fairness."Id.In Alldread,the court explained the rationale behind this approach,stating: 23 [t]his analysis serves the purpose of the attorney client privilege,the protection of communications which the client fully intended*23 would remain confidential,yet at the same time will not relieve those claiming the privilege of the consequences of their carelessness if the circumstances surrounding the disclosure do not clearly demonstrate that continued protection is warranted. Id.Accordingly,a trial court must look to the facts of each case to determine whether a waiver has occurred.We will review a ruling on waiver under a clearly erroneous standard.See id.(noting that the court's findings"are essentially factual in nature and therefore are reviewed under a clearly erroneous standard"). XV1. Applying the foregoing factors,we believe the court erred in issuing a protective order.From the depositions,it is apparent that little effort was made to keep the memorandum confidential.Obayashi admits that it has no idea how the expert witness obtained the memorandum,nor does it appear from the testimony that steps were made to ensure the security of the document once it was given out.Minimal efforts could have been made,such as noting on the top of the page that the document was confidential. Also,the time it took for Obayashi to assert privilege was not reasonable.Presumably the EIS was read by either Obayashi or a representative of Obayashi before it was made public,and the revelation of confidential memorandum as a citation should have alerted someone as to the mistake.However,no effort was made to rectify this error until Plaintiffs sought the memorandum.In addition,despite requests for the memorandum in August,1995,Obayashi did not begin claiming that the memorandum was privileged until October,1995. Finally,in the interest of fairness,Plaintiffs should have had an opportunity to review the memorandum.As Plaintiffs argue,Obayashi received the presumed benefit of citing to the memorandum in the EIS.Because Plaintiffs are,in effect,attacking the validity of Obayashi's compliance with state and city laws,it would be unfair to allow Obayashi to cite a source of information to gain approval,but to withhold the same information when such approval was challenged. However,despite the court's error,we believe that the issuance of a protective order was harmless.In their memorandum in opposition to the protective order,Plaintiffs stated that they sought to demonstrate"that the agricultural'plan is essentially a sham designed to camouflage and justify an upscale housing development and does not satisfy the requirements of State or County land use law."Thus,the purpose of the discovery was to attack the proposal itself.But,as noted above,such a review is premature,and accordingly it does not appear that the memorandum would have assisted Plaintiffs in their argument.As such,Plaintiffs were not prejudiced by the court's protective order. XVII. We therefore affirm the January 30,1998 final judgment. [1]Plaintiffs Save Sunset Beach Coalition and Life of the Land are non-profit corporations organized and existing under laws of the State of Hawai'i with their principal places of business in Honolulu,Hawaii.Other plaintiffs are residents of the North Shore of Oahu. [2]"Rezoning"is the act of changing the designated zoning applicable to an area of land.See Webster's Third New Int'I Dictionary 1945(1986)(defining the term"rezone'as"to zone anew");see also Daniel R.Mandelker, Land Use Law§6.25(5th ed.2003). [3]Under HRS§205-2(a)(1993),"[t]here shall be four major land use districts in which all land in the State shall be placed:urban,rural,agricultural,and conservation."The land in question in the instant case is designated "agricultural" [4]Pursuant to Hawaii Revised Statutes(HRS)§205-5(2001),"the powers granted to the counties under section 46-4 shall govern the zoning within the districts,other than in conservation districts."(Emphasis added.) https://scholar.google.com/scholar_case?case=3834089830730945441&q=regulates+permissible+land+uses&hl=en&as_sdt=4,12 8/11