THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as Pohnpei v. KSVI No. 3 ,
9 FSM Intrm. 273 (Ponape 1999)

[9 FSM Intrm. 273]

STATE OF POHNPEI,
Plaintiff,

vs.

KSVI NO. 3, NATIONAL FISHERIES
CORPORATION, and DOES 1-50,
Defendants.

CIVIL ACTION NO. 1998-009
 

KITTI MUNICIPAL GOVERNMENT,
Plaintiff,

vs.

KSVI NO. 3, NATIONAL FISHERIES
CORPORATION, KOSRAE SEA VENTURES,
INC., and DOES 2-50,
Defendants.

CIVIL ACTION NO. 1998-086

[9 FSM Intrm. 274]

ORDERS

Andon L. Amaraich
Chief Justice

Decided:  December 9, 1999

APPEARANCES:
For the Plaintiff:            Everett Walton, Esq.
         (Pohnpei)             Assistant Attorney General
                                       Pohnpei Department of Justice
                                       P.O. Box 1555
                                       Kolonia, Pohnpei FM 96941

For the Plaintiff:            Ron Moroni, Esq.
            (Kitti)                  P.O. Box 1618
                                        Kolonia, Pohnpei FM 96941

For the Defendants:     Fredrick L. Ramp, Esq.
                                        P.O. Box 1480
                                        Kolonia, Pohnpei FM 96941

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HEADNOTES
Civil Procedure ) Discovery
     Parties are entitled to discovery regarding any matter, not privileged, which is relevant and reasonably calculated to lead to the discovery of admissible evidence.  Generally, discovery should be permitted under Rule 26 when the information sought is relevant to the claim or defense of the party seeking discovery, or to any other party's claim or defense.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 276 (Pon. 1999).

Civil Procedure ) Discovery
     Upon motion by a party or by the person against whom discovery is sought, a court may issue an order, which justice requires, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including that certain matters not be inquired into, or that the scope of discovery be limited to certain matters.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 276 (Pon. 1999).

Civil Procedure ) Depositions
     A party may in the party's notice and in a subpoena name as the deponent a governmental agency and describe with reasonable particularity the matters on which examination is requested.  The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.  This procedure should be distinguished from the situation in which a party wants to take the deposition of a particular individual associated with a governmental agency.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 276 (Pon. 1999).
 
[9 FSM Intrm. 275]

Civil Procedure ) Depositions
     Once a deposition notice is served under Rule 30(b)(6), it is the duty of the governmental agency to name one or more persons who consent to testify on its behalf and these persons must testify as to matters known or reasonably available to the agency.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 276 (Pon. 1999).

Civil Procedure ) Discovery
     A protective order will be granted when defendants seek information related to other reef damage cases in which Pohnpei has brought suit or entered into settlement agreements that has no relevance and is not within the scope of Rule 26 because it has no bearing on facts surrounding the ship's grounding, the defendants' liability, or possible damages, it does not relate to either party's claims or defenses, and to require Pohnpei to produce such information would be oppressive and burdensome.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 277 (Pon. 1999).

Civil Procedure ) Depositions; Evidence ) Privileges
     It is appropriate to allow the deposition of a party's attorney either when 1) the deposition is the only practical means of obtaining the information, 2) the information sought will not invade the attorney-client privilege or the work product doctrine, and 3) the information sought is relevant and the need for it outweighs the disadvantages inherent in deposing a party's attorney; or when it is shown that no other means exist to obtain the information, and that the information sought is crucial to the preparation of the case.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 278 (Pon. 1999).

Civil Procedure ) Depositions; Civil Procedure ) Discovery
     A protective order will be granted preventing the deposition of defendants' counsel and his production of documents when there are other means by which the information can be obtained, when the information does not appear to be as relevant and necessary as suggested, and when the information involves counsel's opinions in a work he co-authored 25 years before.  The plaintiff's need for the information is outweighed by the hardship on defendants, who would be forced to confront the possibility of obtaining different counsel at a late stage of the litigation.  Pohnpei v. KSVI No. 3, 9 FSM Intrm. 273, 278 (Pon. 1999).

*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This case comes before the Court on the following motions filed by the parties:  (1) Motion for Protective Order and to Quash Subpoena Duces Tecum of Everett Walton, filed by Pohnpei State on November 2, 1999; (2) Motion to Compel, filed by defendants on November 9, 1999, and (3) Motion for a Protective Order, filed by defendants on November 10, 1999.

Background
     Defendants, KSVI #3 and NFC, served a notice of deposition and a subpoena duces tecum on Pohnpei State on October 27, 1999.  The deposition was scheduled for November 4, 1999, and the notice requested the appearance of "Everett Walton, Assistant Attorney General Pohnpei State Government, or such person as he may designate knowledgeable and competent to testify," on particular matters.  Mr. Walton wrote to defendants and indicated he would not appear for the deposition, and that he intended to file a motion for a protective order.  Pohnpei State filed a motion for a protective order on November 2, 1999, and the attorneys for Kitti Municipality (Mr. Ron Moroni)

[9 FSM Intrm. 276]

and for the defendants (Mr. Fred Ramp), and court reporter Sue Schadeck appeared for the deposition on November 4, 1999.  Mr. Walton did not appear, nor did any designee of Mr. Walton.  On November 9, 1999, defendants filed a motion to compel discovery from Pohnpei State.

     Defendants seek to depose Mr. Walton or his designee regarding (1) other reef damage cases in which Pohnpei State has brought suit or entered into settlement agreements, and (2) interrogatory and request for production responses prepared and signed on behalf of Pohnpei State by Everett Walton.

     On November 1, 1999, plaintiff Kitti Municipal Government served a notice of deposition on defendants' attorney, Mr. Fred Ramp, requesting that he appear to give testimony on November 15, 1999.  Defendants filed a motion for a protective order on November 10, 1999.

Discussion
     Under FSM Civil Rule 26, parties are entitled to discovery regarding any matter, not privileged, which is relevant and reasonably calculated to lead to the discovery of admissible evidence.  Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 287 (Pon. 1998).  Generally, discovery should be permitted under Rule 26 when the information sought is relevant to the claim or defense of the party seeking discovery, or to the claim or defense of any other party.  Id.  Upon motion by a party or by the person against whom discovery is sought, a court may issue an order, which justice requires, to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including that certain matters not be inquired into, or that the scope of discovery be limited to certain matters.  Id.; FSM Civ. R. 26(c)(4).

     The Court will consider each party's motion for a protective order in turn.

     A.  Pohnpei State's Motion for a Protective Order
     The notice of deposition that defendants served on Pohnpei State on October 27, 1999, was noticed under FSM Rule 30(b)(6).  The deposition notice requested the appearance of "Everett Walton, Assistant Attorney General Pohnpei State Government, or such person as he may designate knowledgeable and competent to testify," on particular matters.  Rule 30(b)(6) provides that:

A party may in the party's notice and in a subpoena name as the deponent a . . . governmental agency and describe with reasonable particularity the matters on which examination is requested.  In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.

FSM Civ. R. 30(b)(6).  This procedure should be distinguished from the situation in which a party wants to take the deposition of a particular individual associated with a governmental agency.  Once a deposition notice is served under Rule 30(b)(6), it is the duty of the governmental agency to name one or more persons who consent to testify on its behalf and these persons must testify as to matters known or reasonably available to the agency.  8A Charles Alan Wright et al., Federal Practice and Procedure 2103 (2d ed. 1994).

     Thus, the burden is on Pohnpei State to designate and produce one or more witnesses to provide testimony regarding matters related to this case, to the extent that such matters are appropriately within the scope of discovery under Rule 26.  Defendants seek discovery of information related to (1)

[9 FSM Intrm. 277]

other reef damage cases in which Pohnpei State has brought suit or entered into settlement agreements, and (2) interrogatory and request for production responses prepared and signed on behalf of Pohnpei State by Everett Walton.

     The Court finds that the information sought by defendants related to other reef damage cases in which Pohnpei State has brought suit or entered into settlement agreements has no relevance to this case and is not within the scope of Rule 26.  This information has no bearing on facts surrounding the grounding of the KSVI #3, the liability of defendants, or possible damages to Pohnpei State or the Kitti Municipal Government.  It does not relate to the claims or defenses of either party, and to require Pohnpei State to produce such information would be oppressive and burdensome.  See M/V Miyo Maru No. 11, 8 FSM Intrm. at 287. Thus, Pohnpei State's motion for a protective order is granted insofar as defendants seek information related to other reef damage cases, and Pohnpei State is not required to produce documents or provide deposition testimony with regard to this subject matter.  Specifically, Pohnpei State is not required to produce the information defendants request in items numbered 1 through 8 in defendants' Subpoena Duces Tecum, dated October 27, 1999.

     However, defendants are entitled to inquire into the preparation of interrogatory responses by Pohnpei State.  Pohnpei State is required to produce the documents and information defendants request in items numbered 9 and 10 in defendants' Subpoena Duces Tecum, dated October 27, 1999.  It is the duty of Pohnpei State to designate a witness or witnesses knowledgeable and competent to testify on such matters.  The information sought is relevant and reasonably calculated to lead to the discovery of admissible evidence.  FSM Civ. R. 26.

     B.  Defendants' Motion for a Protective Order
     On November 1, 1999, Plaintiff Kitti Municipal Government served a notice of deposition on Fred Ramp (attorney for the KSVI #3 and NFC defendants) seeking to depose him regarding:

1.  All notes or research materials compiled or used by (Fred Ramp) in co-authoring the publication M. Nakayama & F. Ramp, MICRONESIAN NAVIGATION, ISLAND EMPIRES AND TRADITIONAL CONCEPTS OF OWNERSHIP OF THE SEA (1974).

2.  All other documents, treatises legal memorandum, reports or studies, which contain any information regarding or reference to traditional fishing rights, and/or ownership of reefs and/or marine areas anywhere within Micronesia.

     Defendants filed a Motion for a Protective Order on November 10, 1999, which was joined by Pohnpei State.

     Plaintiff responds that it is necessary to depose Mr. Ramp to obtain information about his claims in the Micronesian Navigation report that "reefs are exclusively owned by a particular family, clan, municipality, island, and group of islands or atoll,"     because the Court has asked the parties to brief the following issues:

1.  Who if anyone has legal ownership of the submerged land allegedly damaged by the grounding of the KSVI No. 3 . . .; and,

2.  Who if anyone has legal rights to the living marine resources, plant or animal, allegedly damaged by the grounding of the KSVI No. 3 . . . .

     There is no FSM precedent regarding when it is appropriate to allow the deposition of a party's

[9 FSM Intrm. 278]

attorney.  Plaintiff suggests the following test, which United States courts have used under the U.S. Federal Rules of Civil Procedure, upon which the FSM Rules of Civil Procedure are modelled:  (1) the deposition is the only practical means of obtaining the information; (2) the information sought will not invade the attorney-client privilege or the work product doctrine; and (3) the information sought is relevant and the need for it outweighs the disadvantages inherent in deposing a party's attorney.  Other sources suggest that a court should permit the taking of counsel's deposition only where it is shown that no other means exist to obtain the information, and that the information sought is crucial to the preparation of the case.  8A Charles A. Wright et al., supra, 2102.

     Under either inquiry, the Court disagrees with plaintiff's position that the deposition of Mr. Ramp is required, and grants defendants' motion for a protective order.

     First, there are other means by which plaintiff may obtain the information it seeks.  Nothing precludes plaintiff from conducting its own interviews of knowledgeable persons in Pohnpei, or from hiring an expert witness to compile such information and submit an opinion of traditional Micronesian concepts of reef ownership.  There certainly are bases for plaintiff to demonstrate its position other than by deposing defendants' counsel, simply because he was the co-author of one publication 25 years ago.

     Second, the information sought by plaintiff does not appear to be as relevant and necessary to plaintiff's case as plaintiff suggests.  Nothing before the Court indicates that Mr. Ramp specifically expressed any opinion about reef ownership in Kitti.  Further, Mr. Ramp states that the purpose of the publication was to support "archipelagic or 200 mile zone claims, not . . . atoll reef ownership."  Def. Mot. for Protective Order at 2 (Nov. 10, 1999).  The Court recognizes that Mr. Ramp's publication was prepared while he was employed by the Trust Territory Government, and that the report was intended to support a particular position for governmental purposes.  Thus, any statements or opinions expressed in the report which may be relevant to traditional claims of reef or atoll ownership must be considered in that context.

     Finally, there are problems inherent in requiring Mr. Ramp to testify regarding opinions he may have stated 25 years ago which may be inconsistent with the position he now advocates on behalf of his clients.  Plaintiff cannot demonstrate that its need for information from Mr. Ramp outweighs the hardship on defendants, who would be forced to confront the possibility of obtaining different counsel at this late stage of the litigation.

Conclusion
     Accordingly, the Court hereby grants in part and denies in part Pohnpei State's Motion for a Protective Order, grants in part and denies in part Defendants' Motion to Compel, and grants Defendants' Motion for a Protective Order.  Pohnpei State is hereby ordered to provide documents and testimony as set forth above.  Additionally, the parties are hereby ordered to confer, and to submit to the Court no later than December 17, 1999, a proposed date by which such discovery will be completed.