2024-10-28 DPW Response to Appellants Subpoenas

Home

C. ANAYLSIS I. Witness Subpoenas The decision being appealed from is the January 13, 2023 decision issued by Kelly Wilson; therefore, Public Works does not object to Appellant's request for a subpoena for Kelly Wilson. From Public Works' perspective, the only relevant Public Works' employee is the Director, Stephen Pause, because he is the authority having jurisdiction, i.e., the person that administers the construction code and its exemptions, including HRS § 46-88. Public Works objects to the subpoena requests for Julann Sonomura, Chris Domino, Kehau Dumuguin, and Joel Fitzgerald because none of them made the decision that is being appealed or is the authority having jurisdiction. II. Subpoena Duces Tecum Appellant's request for a subpoena duces tecum should be denied because Appellant is not requesting a"particular document or record, or part thereof," as required by BOA Rule 3- 9(b). Appellant's request is discovery request, which is not allowed under FIRS Chapter 91 or the BOA's Rules. Furthermore, all post January 13, 2023 settlement negotiations should not be used as evidence in this proceeding. As persuasive authority: See Hawaii Rules of Evidence, Rule 408 ("Evidence of conduct or statements made in compromise negotiations or mediation proceedings is likewise not admissible."); FIRS § 91-8.5(a), (d) (mediation is encouraged in contested cases and no"mediation statements or settlement offers shall be admitted into any subsequent proceedings involving the case, including the contested hearing of a court proceeding."). 9