FSM SUPREME COURT
TRIAL DIVISION
Cite as Pohnpei v. M/V Miyo Maru No. 11,
9 FSM Intrm. 150 (Ponape 1999)

[9 FSM Intrm. 150]

STATE OF POHNPEI and
POHNPEI ENVIRONMENTAL PROTECTION AGENCY,
Plaintiffs,

vs.

M/V MIYO MARU NO. 11, CAPTAIN HISAMITSU
FURUTA, MASAYO FURUTA and NATIONAL
FISHERIES ASSOCIATION OF JAPAN,
Defendants and Third-Party Plaintiffs,

vs.

SAPWUAFIK MUNICIPAL GOVERNMENT,
Third-Party Defendant.

CIVIL ACTION NO. 1994-136

ORDER

Andon L. Amaraich
Chief Justice

Decided:  May 17, 1999

APPEARANCES:
For the Plaintiffs:                            James P. Woodruff, Esq.
                                                         Assistant Attorney General
                                                         Pohnpei Department of Justice
                                                         P.O. Box 1555
                                                         Kolonia, Pohnpei FM 96941

[9 FSM Intrm. 151]

For the Defendants:                       Stephen V. Finnen, Esq.
(except Nat'l Fisheries Ass'n)       Law Offices of Saimon & Associates
                                                         P.O. Box 1450
                                                         Kolonia, Pohnpei FM 96941

For the Third-Party Defendant:     Ron Moroni, Esq.
                                                         P.O. Box 1618
                                                         Kolonia, Pohnpei FM 96941

*    *    *    *

HEADNOTES
Courts
     A court has inherent powers to compel submission to its lawful mandates.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 152 & n.1 (Pon. 1999).

Attorney, Trial Counselor and Client ) Attorney Discipline and Sanctions
     When counsel has not been specifically advised that the court is considering the issuance of personal sanctions against him and he was not specifically given notice of a hearing on the court's motion to sanction him, the sanction will be vacated and a hearing scheduled to provide the counsel an opportunity to be heard on every matter relevant to the court's resolution of the issue.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 153 (Pon. 1999).

Civil Procedure ) Discovery
     The court may allow a supplemental discovery response to be amended to obtain a declarant's signature on the response.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 153 (Pon. 1999).

Civil Procedure ) Discovery
     When a court's purpose in re-opening discovery on the limited subject of insurance coverage was to give the parties some perspective on whether continued prosecution of the lawsuit would be beneficial to them, the court will not give a party an unfair procedural advantage by allowing it to seek testimony from witnesses it knows to be unavailable and then to ask for sanctions on the basis of that unavailability.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 154 (Pon. 1999).

Civil Procedure ) Discovery
     A court, on a party's motion, may limit discovery in avoidance of oppression, undue burden or expense in order to secure the just, speedy, and inexpensive determination of every action.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 154 (Pon. 1999).

Civil Procedure ) Depositions; Civil Procedure ) Discovery
     Where it would be unjust to sanction defendants whose whereabouts are unknown when what might have been discovered had their depositions gone forward was limited to information concerning insurance coverage, which could have been obtained by cheaper and simpler forms of discovery, the court will issue a protective order that the defendants need not appear for deposition, but that the document production request relating to insurance policies be honored.  Pohnpei v. M/V Miyo Maru No. 11, 9 FSM Intrm. 150, 154 (Pon. 1999).

*    *    *    *
[9 FSM Intrm. 152]

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This matter comes before the Court on the following motions:  1) State of Pohnpei's April 5, 1999 motion to vacate order imposing sanctions on James P. Woodruff, Esq.; 2) State of Pohnpei's April 13, 1999 motion to amend response to interrogatories and request for production; 3) Sapwuafik Municipal Government's (SMG) March 17, 1999 motion for terminating sanctions against Hisamitsu and Masayo Furuta (the Furutas); and, 4) the Furutas' March 11, 1999 motion for protective order.  These motions will be addressed in the order set forth above.

I.  Clarification of March 24, 1999 Order
     On March 24, 1999, this Court issued an order imposing sanctions on counsel for Pohnpei State, James P. Woodruff, Esq., for what it concluded was willful disobedience of an eleven month old discovery order.  On April 5, 1999, Pohnpei State and Mr. Woodruff filed a motion asking the Court to vacate the sanction order.  The motion to vacate argues that the sanctions at issue constitute a fine for criminal contempt, are punitive in nature and were issued in violation of Mr. Woodruff's constitutionally protected due process rights.  Counsel also argues that this Court cannot issue sanctions such as those involved here against an attorney representing a party to pending litigation, unless all the procedural safeguards required in a criminal contempt proceeding are followed.  He claims that an attorney whose conduct causes the Court to contemplate the issuance of sanctions, must be permitted the assistance of counsel, the right to call witnesses on his own behalf and must be afforded the right to refuse to testify against himself.

     These arguments demonstrate a misunderstanding of the nature of the sanctions involved here and misapprehension of the Court's rationale for issuing them.  Moreover, the motion does not fully address the scope of this Court's powers to sanction an attorney or the procedures required by law before doing so. Therefore, clarification of the order is necessary.

     In his motion of April 5, 1999, counsel refers to Rule 37 and concludes that the sanctions at issue here take the form of a fine for criminal contempt and are punitive in nature.

     First, the sanctions issued against Mr. Woodruff were civil and not criminal in nature.  Although not specified in the order, the sanctions were issued pursuant to this Court's inherent powers to compel submission to its lawful mandates.1  The sanctions involved were not issued pursuant to Rule 37 nor did the Court intend them as punishment.  Instead, these sanctions were issued to compensate the Court for the waste of judicial resources, the needless consumption of time and the associated delay in the final disposition of this case occasioned by counsel's continuing noncompliance with a valid order which was repeatedly brought to his attention.

     Next, counsel complains that he was not given adequate notice of the Court's intention to sanction him personally and was deprived of an opportunity to be heard.  Counsel is correct that the Court did not specifically inform him that it was considering the issuance of sanctions against him personally. (See section II below.)

[9 FSM Intrm. 153]

     On January 29, 1999, however, counsel was served with a third motion seeking sanctions against his client and was provided with an opportunity, and did, respond in writing to that motion on February 11, 1999.  As with each of the earlier motions he was given an opportunity to explain why the discovery order was being ignored.  Counsel freely admitted an awareness of the order and explained there was no reason it had not been complied with.  This lack of excuse was followed by continued noncompliance.

     Similarly, counsel was given an opportunity to explain himself at the status conference held on February 18, 1999, at which time counsel again admitted he was aware of the pending order, acknowledged he knew about it for quite some time but provided no legitimate reason for his continued failure to comply. Therefore, the circumstances involved here do not support a finding that no opportunity to be heard was provided.  Instead, it only appears that Counsel was not given a chance to specifically address the issuance of personal sanctions against him.

II.  Motion to Vacate Order Imposing Sanctions
     The Court hereby vacates its order of March 24, 1999 imposing sanctions against James P. Woodruff, Esq.  That portion of the order is vacated on the grounds that Mr. Woodruff was not specifically advised that the Court was considering the issuance of personal sanctions against him and was not specifically given notice of a hearing on the Court's motion to sanction him.

     While the Court believes that counsel's due process rights were not violated and declares that the sanctions involved were civil in nature and not criminal or punitive, a hearing will be scheduled to provide Mr. Woodruff an opportunity to be heard on every matter relevant to the Court's resolution of this issue.  A separate order will be issued requiring James P. Woodruff, Esq., to show cause why he shouldn't be sanctioned in his individual capacity.

III.  Motion to Amend Discovery
     On April 13, 1999, Pohnpei State filed a motion for an order permitting it to amend its responses to SMG's discovery.  The motion is supported by an exhibit suggesting that one of the individuals who supplied information contained within the supplemental discovery responses served and filed on March 13, 1999, was then off-island and therefore unable to submit an affidavit attesting to the accuracy of certain information.

     The motion asks for permission to obtain the declarant's signature, and presumably to file it as an addendum to the supplemental discovery.  To the extent the Court has correctly interpreted what has been requested, and good cause having been shown, the motion is hereby granted.

IV.  Motion for Protective Order and Motion for Sanctions
     On February 25, 1999, the Court issued an order permitting SMG to conduct discovery against the Miyo Maru defendants on the limited subject of insurance coverage for a period of thirty days.  This prompted SMG to notice the depositions of defendants Hisamitsu Furuta and Masayo Furuta, both of whom were known by SMG not to be available at the time the deposition notices were served.  This was the first time that either of the above parties were noticed to provide deposition testimony.

     Given the limited scope of inquiry permitted under the February 25, 1999 order, SMG had waived its rights to conduct pre-trial questioning of these parties on topics unrelated to insurance coverage by failing to notice their depositions before the initial discovery cut-off date.  Therefore, all SMG could have hoped to obtain from the witnesses was insurance related information.

[9 FSM Intrm. 154]

     The Court's purpose in re-opening discovery on the limited subject of insurance coverage was to give the parties opposing the Miyo Maru defendants some perspective on whether continued prosecution of this lawsuit would be beneficial to them.  The Court did not intend to give SMG an unfair procedural advantage by allowing it to seek testimony from witnesses it knew to be unavailable and then to ask for terminating sanctions on the basis of that unavailability.

     FSM Civil Rule 26(c) allows the Court, on motion of a party, to limit discovery in avoidance of oppression, undue burden or expense.  FSM Civil Rule 1 directs the Court to construe the rules of civil procedure, "to secure the just, speedy, and inexpensive determination of every action."  The Court finds that it would be unduly burdensome and expensive to require the Furutas to attend a deposition in Pohnpei to answer questions on the limited subject of insurance coverage considering that their whereabouts are unknown and that they are believed to be outside this jurisdiction.  The Court also finds that it would be unjust to sanction the Furutas as requested by SMG considering the limited scope of information that might have been discovered had the depositions gone forward and in light of the fact that information concerning the limits, scope or existence of insurance coverage could have been obtained by cheaper and simpler forms of discovery.

     Therefore, the Court hereby grants the Furutas' motion for protective order finding that they need not appear at the depositions noticed by SMG pursuant to the Court's order allowing limited insurance coverage related discovery.  However, the Miyo Maru related parties are hereby ordered to comply with the single document production request set forth in the deposition notices of Hisamitsu and Masayo Furuta to the limited extent the requested documents relate to the existence, scope or limits of any insurance policies potentially covering any party to this litigation.  Any document not privileged falling within the scope of this order and in the possession, custody or control of counsel for the Miyo Maru parties or otherwise reasonably available to him or his firm shall be made available to SMG without further request within fifteen (15) days from the date of this order.

     For the reasons set forth above, SMG's motion for sanctions is hereby denied.

V.  Conclusion
     Based on the foregoing, the following orders are issued in this case:

     1)  The order of March 24, 1999 imposing sanctions on James P. Woodruff, Esq. is hereby vacated;

     2)  The State of Pohnpei's April 13, 1999 motion to amend discovery is hereby granted;

     3)  The Furuta's motion for a protective order is hereby granted; and,

     4)  SMG's motion for sanctions is hereby denied.
 
 
Footnote:
 
1.  These inherent powers are universally acknowledged to be vested in courts of justice by their very creation and are necessary to the exercise of all others. See Chambers v. Nasco, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132, 115 L. Ed. 2d 27, 44 (1991).
                                                                                                                                                                                                                                                                                                           
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