Gov Gu, Borja v. GWA, Core Tech Intl

Opinion

FILED

9 fl 3 i7:

SUPER!OR COURT fy; Thf

IN THE SUPERIOR COURT OF GUAM

GOVERNMENT OF GUAM, MICHAEL I. Superior Court Case No. CV119$-18 B. BORJA, in his capacity as Director of Land Management, DECISION AND ORDER RE MOTION TO COMPEL Plaintiff

AND

GUAM WATERWORKS AUTHORITY, a Guam Public Corporation,

Plaintiff-Intervenor,

vs.

CORE TECH INTERNATIONAL CORPORATION, YOUNEX ENTERPRISES CORPORATION,

Defendants.

The Court here considers Plaintiff Government of Guam’s Motion to Compel. Defendants

did not file an opposition. Having reviewed the Government’s arguments and the applicable law

and procedural rules, the Court hereby GRANTS the Motion but DENIES its request for

attorney’s fees.

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DECISION AND ORDER RE MOTION TO COMPEL . Page 2

I. FACTUAL AND PROCEDURAL HISTORY

The Government and Director of Land Management (“DLM”) filed suit against

Defendants Core Tech International Corporation and Younex Enterprises Corporation to cancel

any Certificates of Title erroneously issued by DLM for lots allegedly owned by Defendants. Pet.

Cancel and Amend Cert. Title (Dec. 17, 2018). The Court stayed all motions and discovery

pending a mediation between the parties.’ Order (May 21, 2019). On October 2, 2019, the Court

lifted the stay after mediation failed. Minute Entry (Oct. 2, 2019). The Court also stated that Core

Tech must file an opposition to the pending Motion to Compel (filed on May 8, 2019) on the

regular motion schedule. Minute Entry (Oct. 2, 2019); CVR7. 1(d) (28 days to file an opposition).

On November 14, 2019, after receiving no opposition from Core Tech, the Court took the Motion

to Compel under advisement without oral argument.2

The Government’s motion asks the Court to compel Core Tech to disclose information

“about [Core Tech’s] relationship with Younex, the mortgage, the mortgage sale, the history of

title, Core Tech’s corporate documents and other pertinent records.” Mot. Compel at 2 (May 8,

2019). The Government, however, failed to file a CVR 37.1 Stipulation.

II. LEGAL DISCUSSION

Under Guam Rule of Civil Procedure 34, a party may request to inspect and copy any

documents or tangible things within the scope of Rule 26(b) and which “are in the possession,

custody or control of the party upon whom the request is served.” Rule 26(b) allows discovery

“regarding any mailer, not privileged, that is relevant to the claim or defense of any party.”

finally, a party may move to compel disclosure under Rule 3 7(a) if the opposing party fails to

respond to an original request or does not permit the requested inspection. GRCP 34(b).

‘Defendant Younex Enterprises has not filed or appeared in this case. 2 At no time did Core Tech seek leave to file an opposition beyond the 28 days.

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Here, the Government alleges that Core Tech has not produced any documents despite

stating it would produce at least some. Mot. Compel at 2. Because Core Tech failed to file an

opposition within the timeframe prescribed by CVR 7.l(d)(l), the Court presumes it does not

oppose the motion and that the Government’s allegation concerning Core Tech’s failure to

disclose responsive documents is true.

However, aside from representing it would disclose certain documents and failing to do

so, Core Tech’s response to the Government’s original request indicates that Core Tech objects to

producing some of the Government’s requested documents because Core Tech does not possess

them, Mot. Compel, Ex. B, Reponse Nos. 2-5, 9-12, 14, or because the documents are not

relevant to the case and will not lead to the discovery of admissible evidence, Mot. Compel, Ex.

B,Nos. 1,6-8, 13, 15.

Without more information about Core Tech’s objections to certain requests, the Court

cannot determine whether its relevancy and possession objections have merit. In reviewing the

Government’s Requests for Production, the Court finds the requests appear reasonably calculated

to lead to the discovery of admissible evidence. GRCP 26(b)(1). Also, Core Tech need not

physically possess certain documents to disclose them. “The phrase ‘possession, custody or

control’ is in the disjunctive and only one of the numerated requirements need be met.” Soto v.

City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995) (quoting Cumis Ins. Society, Inc. v.

South—Coast Bank, 610 F.Supp. 193, 196 (N.D. md. 1985)). If Core Tech can obtain relevant

documents that are not public information, Core Tech controls them and must disclose them.

Biben v. Card, 119 F.R.D. 421, 425 (W.D. Mo. 1987) (“control” includes the “legal right of the

producing party to obtain documents from other sources upon demand”). The Court therefore

GRANTS the Government’s request.

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The Government also seeks attorney fees based on Core Tech’s failure to respond to their

reasonable discovery requests. Mot. Compel at 3. Under Rule 37(a)(4), the Court shall require

the party whose conduct necessitated the motion to pay the movant’s attorney fees, unless the

Court finds that the movant did not first make a good faith effort to obtain the disclosure or

discovery without court action, the opposing party’s nondisclosure, response, or objection was

substantially justified, or the award of expenses would be unjust. The Government has

demonstrated that it attempted to garner a response to its discovery requests from Core Tech but

only received a non-responsive answer. Mot. Compel at 2, Ex. B. Core Tech has not

demonstrated that its failure to disclose the requested documents was substantially justified or

that awarding the Government attorney fees would be unjust.

However, the Government failed to provide a critical document with its Motion: a CVR

37.1 Stipulation. That document and the efforts to reach a stipulation may have aided the parties

in resolving or at least narrowing the contested issues. It also certainly would have helped the

Court in understanding, even in a situation in which no opposition is filed, what issues remain.

By failing to take this important step, the Government did not complete its obligation to resolve

this discovery dispute prior to involving the Court. The Court must thererefore DENY its request

for attorney fees.3

III. CONCLUSION

Based on the aforementioned reasons, the Court GRANTS the Government’s Motion to

Compel but DENIES its request for attorney’s fees. Core Tech must produce the requested

discovery material within 14 days of this Decision and Order.

CVR 37.1 authorizes the Court to deny a Motion to Compel outright when not accompanied by the stipulation. However, because no opposition was filed, seven months have elapsed since the motion was filed, and this case has an April 27, 2020 trial date, the Court elects to consider this Motion without the assistance of the CVR 37.1 Stipulation.

ORIGINAL CV119$-18 DECISION AND ORDER RE MOTION TO COMPEL Page 5

SO ORDERED this 12th day of December 2019.

HO1b. fLYZE M. IRIARTE Judge, Superior Court of Guam

tz VA COURT BCX ackn k Je that a copy of the gna hcreto was paced n the cit box o.

et Ccrk, Supenor Coert f Gearn

Appearing Attorneys: James Canto, Esq., Assistant Attorney General, Office of the Attorney General, for the Government of Guam and the Director of Land Management Kelly Clark, Esq., Guam Waterworks Authority, and Vincent Leon Guerrero, Esq., Law Office of Vincent Leon Guerrero, for Guam Waterworks Authority Vanessa L. Williams, Esq., Law Office of Vanessa L. Williams, for Core Tech International Corporation

ORIGINAL