Gov Gu, Borja v. GWA, Core Tech Intl

Opinion

._ n -r.!L trill I

SUPERIQ oF 2;- -1. * law tem Eu PM u= , RK GF fzfmf IN THE SUPERIOR COURT OF GUAM W. GOVERNMENT OF GUAM, MICHAEL J. Superior Court Case No. CV1198-18 X. B. BORJA, in his capacity as Director of Land Management, DECISION AND ORDER RE MOTION TO QUASH Plaintiff,

AND

GUAM WATERWORKS AUTHORITY, a Guam Public Corporation,

Plaintiff-Intervenor,

vs.

CORE TECH INTERNATIONAL CORPORATION, YOUNEX ENTERPRISES CORPORATION,

Defendants.

The Com here considers Defendant Core Tech International Corporation's Motion to

Quash, heard on May 20, 2019. Having considered the parties arguments and applicable law, the

Court DENIES the Motion to Quash.

The Government of Guam and Director of Land Management ("DLM") seek to amend,

cancel, and rescind all Certificates of Title pertaining to lots allegedly owned by Defendants, due

to mistakes made by DLM in issuing the certificates. Pet. to Cancel and Amend Cert. of Title

ORIGINAL CV1198-18 DE SION AND ORDER RE MOTION TO QUAS Page 2

(Dec. 17, 2018). Guam Waterworks Authority has intervened claiming to be the owner and

operator of some of the lots implicated in the Government's petition. Mot. to Intervene at 2-3

(Mar. 22, 2019), Pet. Quiet Title. (Apr. 17, 2019). Core Tech and GWA have agreed to mediation,

which the Government also expects to join, but GWA inserts the caveat that the deposition of

Core Tech's in-house counsel and vice-president, Edwin K.W. Ching, must proceed as scheduled

prior to the mediation.

Core Tech, however, moves to quash the Government's deposition subpoena of Ching

"because the only information he possesses about Plaintiff's claims is protected from disclosure

by the attorney-client privilege and attorney work-product doctrine...." Mot. to Quash at 1-2

(Apr. 26, 2019). The Government counters that it seeks Mr. Ching's testimony not as an attorney

but as a material witness. Opp'n to Mot. to Quash at 7 (May 3, 2019). It wants to low: "What

did Core Tech know about GWA's interest in the land in question and when did it know it?"

Opp'n to Mot. to Quash at 2. It is "interested in the facts of what Mr. Ching did when he

requested the [Certificates of Title], spoke to DLM personnel, and conducted the foreclosure

sale. It will not ask about his mental impressions or Core Tech's litigation strategy." Opp'n to

Mot. to Quash at 7. The Government offers letters written by Ching to various government

agencies concerning the property at issue .

Guam Rule of Evidence 504(c) recognizes the attorney-client privilege on Guam. The

attorney-client privilege protects "confidential communications made by a client to an attorney to

obtain legal services," Clarke xo American Commerce Nat. Bank, 974 F.2d 127, 129 (9th Cir.

1992), and generally extends to the substance of the client's communication, the attorney's

advice in response, and any papers prepared at the attorney's request for the purpose of advising

ORIGINAL CV1198-18 DE ISION AND CRDER RE MOTION TO QUAS Page 3

the client. Matter ofFischel, 557 F.2d 209, 211-12 (9th Cir. 1977). The party asserting the

privilege has the burden to demonstrate the privilege applies to the information in question. US.

u Hirsh, 803 F.2d 493, 496 (9th Cir. 1988). The Court also notes that the privilege suppresses

information, and thus its operation "must be assiduously heeded. Put another way, the privilege

must be strictly limited to the purpose for which it exists." DiCenzo v. Ozawa, 723 P.2d 171, 176

(Haw. 1986).

Unlike an outside counsel, an in-house attorney may play dual roles. Ching falls into this

category. His correspondence with the Government discusses not just his legal opinion, but also

details on Core Tech's anticipated use of the properly. Not all of his conclusions in his letters

pertain to pure legal work, and they also are not privileged by their very nature. The Court

cannot quash his deposition in full because Ching's communications demonstrate he may have

relevant knowledge beyond his legal role. Instead, the Court must allow the deposition to

proceed, during which Core Tech may assert the privilege when applicable, and then decide

which specific questions enjoy protection under the attorney-client privilege.

This extends to Core Tech's assertion of the attorney work-product doctrine. The

doctrine "she1ter[s] the mental process of the attorney, providing a privileged area within which

he can analyze and prepare his client's case." United States 14 Nobles, 422 U.S. 225, 238-39

(1975). The documents referenced by the Government are not attorney work product, and the

Government may pose questions to Ching about these documents. In the deposition, further

documents may be subject to the protections as attorney work-product, but no such documents

are presently before the Court.

ORIGINAL CV1198-18 DE SION AND ORDER RE MOTION TO QUAS Page 4

Finally, Core Tech contends that the areas in which the Government seek to depose Ching

fall outside of the Government's claims. Because GWA also seeks Ching's deposition, all parties

will par ticipate in mediation , an d efficien cy deman ds th is case an d discover y pr oceed with all

parties present, Core Tech's argument fails.

The Court finds the Government and GWA may depose Mr. Ching and therefore DENIES

Core Tech's Motion to Quash.

SO ORDERED this 24th day of May 2019.

Jlw»@»lu' H()N_{ELYZE M. IRIARTE Judge, Superior Court of Guam

SERVICE VIA COURT BOX I acknowledge that a copy of the original hereto was placed in the

°8E;'E°%?c.; j<.M a r k V.LaonWurao, V .wA\uuv~9 Date:SNI Time: 4°-'\§p» .:Ty Clerk, S orCou\1 of Guam

Appearing Attorneys : David J. Highsmith, Assistant 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