In the Matter of Estate of Kang

• Court: Superior Court of Guam
• Decided: October 5, 2021
• Docket: PR0122-19
• Status: Unknown

Opinion

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mom( OF COURT

So i IN THE SUPERIOR COURT OF GUAM

IN THE MATTER OF THE ESTATE PROBATE CASE NO. PR0122-19

OF DECISION AND ORDER (Motion to Quash; Motion to Compel; BYONG H. KANG, Motion for Protective Order) AND ORDER SETTING SCHEDULING CONFERENCE Deceased.

This matter came before the Honorable Dana A. Gutierrez on July 6, 2021 for a Motion

hearing on: 1) Petitioner Anthony Raymond Ulloa's ("Petitioner") Motion to Quash Subpoena

for Production of Documents to Samonte Medical Clinic filed on November 5, 2020 ("Motion to

Quash"), 2) Cross-Petitioner Jung Ye Kang's ("Cross-Petitioner") Motion to Compel Production

of Documents filed on December 3, 2020 ("Motion to Compel"), and 3) Petitioner's Motion for

Protective Order or to Quash Subpoena, Request to Take Judicial Notice filed on December 10,

2020 ("Motion for Protective Order").

Present via Zoom were Attorney Carlos L. Taitano and AttorNey Georgette Conception

representing Petitioner, Attorney Joyce C.H. Tang representing Cross-Petitioner, and Attorney

Joshua D. Walsh represent heirs Suk Hook Paul Kang and Suk Jin Andrew Kang ("Paul and

Andrew"). Upon a review of the applicable law, the arguments presented by the parties, and in

consideration of the proceedings thus far, the Court hereby GRANTS Petitioner's Motion to

Quash and ADMONISHES Cross-Petitioner, DENIES Cross-Petitioner's Motion to Compel,

and GRANTS IN PART and DENIES IN PART Petitioner's Motion for Protective Order.

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

PROCEDURAL BACKGROUND

This matter arises out of a Petition for Probate of Will and Letters Testamentary ("Ulloa's

Petition") for the Estate of By org H. Kang ("Decedent") filed by Petitioner on July 14, 2020.

On September 9, 2020, before the hearing on Ulloa's Petition, the alleged surviving spouse of

decedent, Jung Ye Kang ("Cross-Petitioner"), filed: 1) Objections to Petition for Admission of

Will and Letters of Administration With the Will Annexedl ("Objection to Ulloa's Petition"), and

2) Ver ified Cr oss-Petition for Pr oba te of Will & Letter s of Administr a tion With the Will

Annexed ("Kang's Cross-Petition"). On October l, 2020, P etitioner tiled a n Objection to

Verified Cross-Petition for Probate of Will & Letters of Administration With Will Annexed.

("Objection to Kang's Petition").

On November 4, 2020, Cross-Petitioner's counsel issued a Subpoena for Production of

Documents addressed to the Samonte Medical Clinic (Dr. Romeo M. Samonte, M.D.), Custodian

of Record ("Samonte Clinic") which commanded the Samonte Clinic to produce the requested

documents by November 9, 2020. On November 5, 2020, the day after Cross-Petitioner served

notice of the subpoena on Petitioner and the Samonte Clinic, Petitioner filed his Motion to Quash

Subpoena and Objection or Memorandum of Points and Authorities in Support of Motion to

QuashSubpoena for Production of Documents to Samonte Medical Clinic ("Motion to Quash").

After br iefing on the Motion to Qua sh, Cr oss-Petitioner tiled a Motion to Compel

Production of Documents From Anthony Ulloa ("Motion to Compel") on December 3, 2020. On

December 10, 2020, Petitioner filed a Motion for Protective Order or to Quash Subpoena,

Request to Take Judicial Notice ("Motion for Protective Order"). On December 14, 2020,

Petitioner tiled his Opposition to Cross-Petitioner's Motion to Compel. On December 15, 2020,

Cross-Petitioner filed her Opposition to Petitioner's Motion for Protective Order. Also on

1 The Court notes that Cross-Petitioner titled her objection: "Objection to Petition for Admission of Will and Letters of Administration With Will Annexed." However, the Court understands this to be a clerical error, and presumes that Cross-Petitioner's objection is against Petitioner's "Petition for Probate of Will and Letters Testamentary."

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-I9; In the Matter of the E st a t e ofByon g H Ka n g

DeceMber 15, 2020 Cross-Petitioner filed her Reply to Petitioner's Opposition to the Motion to

Compel. On December 16, 2020, Petitioner filed his Reply to Cross-Petitioner's Opposition to

the Motion for Protective Order.

On December 23, 2020, the judge previously assigned to this matter, the Honorable Anita

A. Sukola, issued a Form One Disqualification Memorandum recursing herself from the case.

The matter.was assigned to this Court on December 29, 2020. On December 31, 2020, Petitioner

f i l e d a R e s ta te d or S u ppl e me nta l Me mora nd u m of P oi nts a nd A u thori ti e s i n S u pport of

Opposition to Cross-Petitioner's Motion to Compel ("Restated Opposition"). On January 4,

2020, Petitioner ilea an Ex Parte Motion to Shorten Time on Petitioner's Motion for Protective

Order.

On January 12, 2021, the Court issued an Order Denying Ex Parte Motion to Shorten

T i me a nd f or F u r the r B r i e f i ng w hi c h or d e r e d : 1 ) tha t the pa r ti e s f i l e a f u r the r br i e f i ng

su mmari zi ng thei r posi ti on reg ardi ng the abov e-menti oned moti ons, 2 ) that any di scov ery

acquired by Cross-Petitioner and Cross-Petitioner's counsels which is the subject of Petitioner's

Motion to Quash tiled on November 5, 2020 and Motion for Protective Order tiled on December

10, 2020 be sequestered pursuant to Rule 45(d)(2)(B) of the Guam Rules of Civil Procedure

("GRCP") pending further order from the Court, and 3) that all discovery related to the Motion

to Quash, the Motion to Compel and the Motion for Protective Order be stayed pending further

order from the Court.

On January 14, 2021, Cross-Petitioner filed a Reply to Petitioner's Restated Opposition.

Each party filed their Further Briefing by January 22, 2021. Upon a review of the voluminous

filings, the Court scheduled a Motion Hearing for June 22, 2021 to address: 1) Petitioner's

Moti on to Qu a sh, 2 ) Cross-Peti ti oner's Moti on to Compel , a nd 3 ) Peti ti oner's Moti on for

Protective Order.

On June 18, 2021, Cross-Petitioner motioned the Court to continue the June 22, 2021

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang

Motion hearing. The Court held a hearing on the Motion to Continue, and upon consideration of

the pleadings and the arguments presented by the parties at the hearing, the Court granted the

continuance and rescheduled the Motion hearing for July 6, 2021. After the parties presented

their oral arguments on each of the three motions, the Court took the matters under advisement.

DISCUSSION

The issues before the Court arise out of discovery disputes related to competing petitions

to name a personal representative to administer Decedent's estate. Pursuant to 15 GCA § 3423

of GuaM's Probate Code, "all issues of fact joined in probate proceedings must be tried in

conformity with the rules of practice in civil actions." Accordingly, the Guam Rules of Civil

Procedure and the Local Rules of the Superior Court of Guam are applicable in resolving the

discovery disputes addressed by the Court herein.

I. Motion to Quash.

In response to Cross-Petitioner's "Notice of Jung Ye Kang's Subpoena for Production of

Documents to Samonte Medical Clinic (Dr. Romeo M. Samonte, M.D.)," Petitioner filed his

Motion to Quash the subpoena for production of documents directed to the Samonte Clinic. In

the Motion to Quash, Petitioner argues that according to the Decedent's Last Will and Testament,

the Decedent "nominated and appointed" the Petitioner as the "executor" of the Decedent's

estate, and the Petitioner has not waived any privilege of the Decedent. Mot. to Quash, at 1.

Petitioner asserts that the subpoena should be quashed on grounds of irrelevancy and

pursuant to Rule 45(c)(3)(A)(ii) of the GRCP, which requires the quashing of a subpoena "if it

requires disclosure of privileged or other protected matter and no exception or waiver applies."

Id. at 1-4. Petitioner cites to Rule 504(f) of the Guam Rules of Evidence ("GRE") to argue that

under Guam law, there is a "physician-patient privilege," without any "exception." Id. at 2.

Lastly, Petitioner asserts that this "physician-patient privilege" survived the Decedent's death,

and therefore the subpoena must be quashed as it seeks the disclosure of privileged medical

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

records. Id.

In Cross-Petitioner's Opposition to the Motion to Quash, Cross Petitioner asserts that the

Motion to Quash should be denied for the following reasons: 1) the Motion to Quash is moot

because the documents were produced by the Samonte Clinic and copies will be provided to

oppos i ng cou ns el , 2 ) P eti ti oner does not ha v e s ta ndi ng to bri ng the Moti on to Qu a s h, 3 )

Petitioner's assertion of the physician-patient privilege does not apply because the right to assert

and/or waive such privilege belongs to the executor, and Petitioner has not been named executor

by the Court, and 4) the issue of a decedent's competency is always at issue in a probate case and

thus the Decedent's medical condition is relevant to this probate matter. Opp. to Mot. to Quash,

at 1-2.

A. The Motion to Quash Is Not Moot.

Cross-Petitioner asserts that the Motion to Quash is moot because the Samonte Clinic

already produced the documents requested in the Subpoena. Opp. to Mot. to Quash, at 2. In

response, Petitioner asserts the Motion to Quash is not moot because Rule 45 of the GRCP

requires that "if information is produced in response to a subpoena that is subject to a claim of

privilege," Cross-Petitioner (or her attorneys) are required to "automatically and promptly return,

sequester, to destroy the specified information and any copies she (or her attorneys have) of the

Decedent's medical records[.]" Reply to Opp. to Mot. to Quash, at 10 (internal quotations

omitted).

Cross-Petitioner's argument for moistness was similarly raised in C h u r c h o f S c i e n t o l o g y

of C a l. u US., 506 U.S. 9, 12-13 (1992). In C h u r c h o f S c i e n t o l o g y , the Internal Revenue Service

("IRS") served a summons on a state-court clerk seeldng the production of tapes of conversations

between Church officials and their attorneys. C h u r c h o _ f S c i e n t o l o g y , 506 U.S. at 11. The trial

court ordered compliance with the summons and the tapes were provided to the IRS, but the

Church appealed the trial cou1"t's order. Id. The Ninth Circuit dismissed the appeal holding that

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19,' In the Matter of the Estate ofByong H K ang

because "the tapes have been turned over to the IRS .. . no controversy exists presently and this

appeal is moot." Id. at 12.

The U.S. Supreme Court reversed the Ninth Circuit's dismissal holding that although the

court "may not be able to return the parties to the status quo ante--there is nothing a court can

do to withdraw all knowledge or information that IRS agents may have acquired by examination

of the tapes-a court can fashion some form of meaningful relief in circumstances such as

these." Id. at 12-13. The Court reasoned that even where it may be too late to provide a "fully

satisfactory remedy for the invasion of privacy that occurred," the Court still has "power to

effectuate a partial remedy," and the "availability of this possible remedy is sufficient to prevent

this case from being moot." Compare id. at 13, with Veith 14 Pennsylvania, 67 Fed. Appx. 95,

97-99 (ad Cir. 2003) (where the Court distinguished the case fromChurch of Scientology, noting

that the subpoenaed documents at issue did not fall under a protected privilege, such as the

physician-patient privilege, so the motion to quash was moot).

Here, the case at bar is alf to the case in Church of Scientology. Petitioner's Motion to

Quash seeks to require the Cross-Petitioner (and her attorneys) to destroy the medical records

acquired from the Decedent's doctor's office based on Petitioner's assertion that no authorized

representative has waived the Decedent's physician-patient privilege, and the physician-patient

privilege survives the Decedent's death. Mot. to Quash, at 1-2, Reply to Opp. to Mot. to Quash,

at 2-8. As noted in Veitn v Pennsylvania, certain privileges, such as the physician-patient

privilege, implicate a privacy interest based on the purpose of such privilege, which is to prevent

disclosures that could inhibit the development of socially desirable confidential relationships.

See Veith, 67 Fed. Appx. at 99.

Because Decedent's privacy interest in his physician-patient privilege may have been

violated by Cross-Petitioner's subpoena to the Samonte Clinic, the Clinic's production of the

documents does not resolve the Motion because at least partial remedies may be available to

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19; In the Matter of the Estate ofByong H Kang

redress the allegations in Petitioner's Motion to Quash. See id. Therefore, the Court finds that

the availability of a possible remedy is sufficient to prevent this Motion to Quash from being

moot. See Church of Scientolo0y, 506 U.S. at 14.

B. Cross-Petitioner May . Be Authorized to Waive Decedent's Physician-Patient Privilege In the Context of a "Will Contest" Proceeding.

When faced with a will contest, Courts have found that "where both sides-the executor

on the one hand and the heirs or next of kin on the other-claim under and not adversely to the

decedent, the assumption should prevail that the decedent would desire that the validity of his or

her will should be determined in the fullest light of the facts," and therefore, "either the executor

or the contestants may effectively waive the [physician-patient] privilege without concurrence of

the other." An rot., l McCormick On Evidence § 102 (8th Ed.).

In In re Wlson :s' Estate, the District of Columbia Court of Appeals addressed this issue

wher e t he decedent 's will na med his a t t or ney a s ex ecu t or , a nd t he will dis inher it ed his

heirs-at-law, namely his estranged wife, daughters, and his granddaughter. In re Wilson fs' Estate,

416 A.2d 228, 229 (D.C. 1980) (hereinafter "Wilson"). The trial court prohibited evidence of the

decedent's medical records, holding that until letters testamentary have been issued, no one can

claim to be the "legal representative" of the decedent and therefore no one was authorized to

waive the decedent's physician-patient privilege. Id. at 230.2 The Court of Appeals reversed the

trial court, holding that "where there is a conflict between the heirs-at-law and the executor,

either ea nomine or demure, or where the heirs-at-law are on opposing sides of a will contest, any

single one of the heirs, or the executor, ea nomine or De jure, should be entitled to waive the

2 Although Wilson did not explicitly deal with the issue of discoverability of such evidence, this Court finds that the issue of discoverability necessarily depends on resolving the issue of whether the physician-patient privilege may be waived by either litigant 'ii this case. The issue of who may waive such privilege in the context of these cases was explicitly addressed in Wlson and the authorities cited to therein. Therefore, the Court considers the Wilson case and similar authorities on the issue of waiver to be instructive.

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

physician-patient privilege." Id. at 236.

Without addressing the issue of weedier the Samonte Clinic properly complied with the

subpoena to produce the decedent's medical records or the issue of whether the evidence would

ultimately be admissible as evidence,4 the Motion to Quash requires the Com to decide whether

this privilege may be waived for purposes of discoverability. In Wilson the Court reasoned:

After the patient has died, it is of paramount importance that both his property interests, as well as his reputation and memory, be protected..In this regard, an heir should have the power to waive the [physician-patient] privilege[.] ... The heirs are all interested in the protection of the estate and therefore are accorded the right of waiver upon the presumption that they would. only consent to the waiver for the purpose of securing that end ... Furthermore, it is almost universally conceded that all parties concerned need not unite before the privilege may be waived, and that any one of those entitled to waive the privilege may do so without the consent of the others.

Id. at 237 (citing 97 A.L.R.2d 393, 418, n.8 (l964)).

Lastly, Petitioner claims that any authority Cross-Petitioner may have ordinarily had to

waive such a privilege has been revoked (or "disqualified") due to a "manifest conflict of

interest" with the Decedent due to her disinheritance under the Will and their contentious

divorce. Reply to Opp. to Mot. to Quash, at 6. However, this was similarly the factual scenario

in Wlson where the purported heirs opposing the nomination of the named executor were both

disinherited under the decedent's will and at least had an estranged relationship with the

decedent. E.g., id. at 229, 234-35, n.l3 (citing An rot., 97 A.L.R.2d 393 (l964)). These courts

were similarly confronted with the issue of the heirs' potential conflict of interest, yet their

3 Health care providers are frequently held to have an enforceable duty to invoke the privilege in the absence of waiver by the patient. 1 McCormick On Evidence § 102 (8th Ed.)(citing St. Louis Little Rock Hosp., Ire. v Gaertner, 682 S.W.2d 146 (Mo. Ct. App. E.D. 1984) (failure of provider to assert privilege on behalf of patient in absence of waiver may give rise to action for damages), Cal. Evid. Code §§ 994, 995 (requiring the physician to claim the privilege unless otherwise instructed by the patient)). However, this issue is not before the Court. 4 See Church of Scientology, 506 U.S. at 17, Veith, 67 Fed. Appx. at 99 (where the courts emphasized that in resolving the dispute regarding the discoverability of documents, the court is not faced with resolving any future potential disputes regarding the evidentiary use of the documents).

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

holdings nevertheless maintained that either the heirs or the named executor in the Will may

waive the physician-patient privilege before the Court affirms the nomination of a personal

representative for the est at e. `See i d.

"Allowing one side the advantage of being able to choose to either introduce or withhold

the physician's testimony would seriously call into question the validity of the outcome of the

contest." Id. at 235. Accordingly, this Court finds that in a will contest, either the Petitioner, as

the named executor in the purported Last Will and Testament of the Decedent, or the

Cross-Petidoner, as the surviving spouse of the Decedent, are permitted to waive the Decedent's

physician-patient privilege.

c. Decedent's Medical Records Are Not Relevant, and Therefore Not Discoverable.

Notwithstanding this Coult's finding that either Petitioner or Cross-Petitioner may be

authorized to waive the Decedent's physician-patient privilege in the context of a "will contest,"

the scope of discovery is always limited to matters that are "relevant to the subject matter

involved in the action." GRCP 26(b)(1).5 W l s o n a n d t h e authorities cited to therein held that

either side of a w i l l c o n t e s t is permitted to waive the physician-patient privilege in light of the

Court's duty to determine the "validity of the wi11." Wi lson , 416 A.2d at 227-29 (citing 97

A.L.R.2d 393, 418, n.8 (1964)).6 In other words, even assuming Cross-Petitioner may be

authorized to waive the Decedent's physician-patient privilege, the waiver of an evidentiary

privilege must have a relevant pLu'pose. People v Garcia, 111 CaLRptr.3d 435, 442 (Ct. App.

2010) (holding that even assuming waiver, such waiver is limited to only those matters "directly

relevant" to the issues); see Robert W Baird & Co. Inc. V Whitten, 418 P.3d 894, 900 (Ariz. Ct.

App. 2 0 1 7 ) (" The tou chs tone f or i mpl i ed w a i v er i s w hether the protected i nf orma ti on i s

5 See People u Orallo, 2004 Guam 5 11 20 (citing to Rule 26 of the GRCP and holding that where information was not relevant, it was not discoverable), Piatt v Goldsmith, 940 F.2d 669, at *3 (9th Cir. 1991) (upholding the trial court's decision to limit discovery due to irrelevance of the materials sought). 6 Additionally, this Court recognizes the existence of 6 GCA § 3102. However, like Wilson and the other authorities mentioned, this statute specifically applies to "will contests."

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19,' In the Matter of the Estate ofByongH Kang

inherently relevant to the privilege-holder's theory of the case.").

By contrast to Wlson, the underlying controversy in this matter is not a "will contest;"

Although this Court is not yet faced with the decision of who shall be appointed as the executor

I or administrator of the Decedent's estate, both Petitioner and Cross-Petitioner's competing

petitions seek to admit the same Last Will and Testament of By org Kang to probate in this Court.

See Ulloa's Petition, at 1-2, Exhibit B (July 14, 2020), Kang's Cross-Petition, at l (Exhibit B)

("Verified Cross-Petition for Probate of Will & Letters of Administration With the Will

Annexed) (Sept. 9, 2020).

A careful review of Cross-Petitioner's Objection to Ulloa's Petition, her Cross-Petition,

and Cross-Petitioner's Reply in Support of Jung Ye Kang's Verified Cross-Petition for Probate of

Will, reveal that Cross-Petitioner has not contested the validity of the Decedent's Last Will and

Testament. Rather, Cross-Petitioner seeks to challenge the PetitionerS competency to be

appointed executor of the Decedent's estate. Mot. to Compel, at 1 (where Cross-Petitioner states

that "[t]he main issues in this probate action include whether 1) the assets of the Estate

(including Trust assets) are community property, and 2) whether Ulloa is competent to be

appointed executor of Decedent's Will.").

A challenge to the competency of a decedent at the time his Will was executed is a

separate issue from a challenge to the competency of a purported executor petitioning to be

confirmed as the estate's personal representative. Absent any challenge to the validity of the

Decedent's Will, the Court ends that the Decedent's medical records are irrelevant to the

"subject matter involved" in the underlying controversy of this litigation. Additionally, this lack

of relevance is compounded by the protections of the physician-patient privilege afforded to the

Decedent pursuant to 6 GCA § 504, the existence of which the Cross-Petitioner does not

dispute.7

7 Cross-Petitioner cites to Sims u State to support the proposition that only a confirmed personal representative may assert a decedent's physician-patient privilege. Sims, 311 S.E.2d 161 (Ga. 1984).

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang ,

Therefore, the Court must quash the subpoena on the basis that the Decedent's medical

records are not relevant because the issue of Decedent's competency has not been raised by

either party.8 Accordingly, the Court orders that Cross-Petitioner (and her attorneys) continue to

sequester the Decedent's medical records and any copies they have, and may not use or disclose

the information contained therein, until further order of the Court.

D. Cross-Petitioner Failed to Comply with the Prior Notice Requirement of GRCP Rule 45(b)(1)_

Lastly, Petitioner argues that his Motion to Quash should be granted for

Cross-Petitioner's failure to comply with Rule 45(b)(l). Reply to Opp., to Mot. to Quash, at

8-10. Cross-Petitioner dismissed this argument by asserting that because the documents were

produced, the Motion to Quash is moot. Min. Entry, at 9:45:52-9:48:15 AM (July 6, 2020).

1. The Service of the Subpoena Violated GRCP Rule 45(b)(1).

GRCP Rule 45(b)(1) provides: "Prior notice of any commanded production of documents

... before trial shall be served on each party in the manner prescribed by Rule 5(b)." Guam's

current Rule 45(b)(l) is identical to the 1991 version of Rule 45(b)(1) of the Federal Rules of

Civil Procedure ("FRCP"). When the 1991 version of FRCP Rule 45(b)(1) was enacted, the

Advisory Committee wrote:

A provision requiring service of prior notice pursuant to Rule 5 of compulsory pretrial production or inspection has beenadded to paragraph (b)(1). The purpose

However, both parties' reliance on Sims is misplaced because the issue of standing to assert the physician-patient privilege was not at issue in the case, and due to more recent, overriding case law interpreting Sims. Id. at 166, n. 7. A later case, Cooksey v Landry, narrowed the reasoning in Sims by holding that in the absence of a waiver by the patient, material covered by the physician-patient privilege remains nearly absolutely privileged alter a patient's death, regardless of who attempts to assert the privilege. Advantage Behavioral Health Systems v Cleveland, 829 S.E.2d 763, 770, n. 7 (Ga. Ct. App. 2019) (citing Cooksey v Landry, 761 S.E.2d 61, 64-65 (Ga. 29l4)). s Because the Court is granting Petitioner's Motion to Quash on the basis of irrelevance, and not on the basis of the Decedent's physician-patient privilege, the Court need not address the issue of whether Petitioner has standing to assert the privilege on Decedent's behalf. However, even if Petitioner lacked standing to assert the privilege, "it is undisputed that trial courts are authorized, indeed obligated, to regulate the use of subpoenas to obtain privileged third party discovery." People v Super. Cr., 182 P.3d 600, 610 (Cal. 2008).

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19; In the Matter of the Estate ofByong H Kang

of such notice is to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things ... [W]hen production or inspection is sought independently of a deposition, other parties may need notice in order to monitor the discovery and in order to pursue access to any information that may or should be produced.

Federal courts interpreting the 1991 version of FRCP Rule 45 hold that the rule requires

notice of the subpoena to be served on opposing parties prior to service of the subpoena on the

third party, not merely prior to the production date.9 For example, in Butler u Biocore Medical

Tech. Inc., the Tenth Circuit upheld the trial court's finding that the attorney's failure to serve

notice of the subpoenas on opposing counsel prior to service of the subpoena on the third party

constituted a violation of Rule 45(b)(1). Butler, 348 F.3d 1163, 1173-74 (10th Cir. 2003).

Likewise, in Firefighter is Inst for Racial Equality ex rel Anderson u City ouSt. Louis, the Eight

Circuit upheld the trial court's decision to quash two subpoenas where counsel served a subpoena

on third parties before giving prior notice of the subpoenas to opposing counsel. Ex rel

Anderson, 220 F.3d 898, 903 (2000).

As the Tenth Circuit held in Butler, the purpose of the notice requirement is to provide

opposing parties an opportunity to object to the subpoena. Butler, 348 F.3d at 1173. In light of

this purpose, "Rule 45(b)(1) requires notice to be given prior to service of a subpoena." Id.

(holding that notice of the subpoena ten days prior to the production date because the party did

not serve notice of the subpoena prior to service on the third party) (citing Seewald u HIS

Intelligent Information Sys., Ltd., No. 93-CV-4252, 1996 WL 612497, at *4-5 (E.D.N.Y 1996)

9 In 2007, Rule 45(b)(1) of the FRCP was amended to make this "prior notice" requirement even more clear and now reads: "If the subpoena commands the production of documents ... before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party." Fed. R. Civ. P. 45(a)(4). In the Advisory Committee Notes regarding the 2007 Amendment, the Committee writes : Former Rule 45(b)(l) required "prior notice" to each party of any commanded production of documents and things or inspection of premises. Courts have agreed that notice must be given "prior" to the return date, and have tended to converge on an interpretation that requires notice to the parties before the subpoena is served on the person commanded to produce or permit inspection. That interpretation is adopted in amended Rule 45(b)(1) to give clear notice of general present practice.

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-I9,° In the Matter of the Estate ofByong H Kang

(holding that notice of the subpoena even weeks prior to the production date violated Rule

45(b)(I) because the rule requires notice be given prior to serving the subpoena on the third

party) (emphasis added).

In the case at bar, Petitioner argues that prior notice of the subpoena was not given

because the notice of the subpoena was served on Petitioner on the same day that it was served

on the Samonte Clinic, which was also the same day the documents were produced to

Cross-Petitioner's counsel. Min. Entry, at 9:38:51-9:41:41 AM (July 6, 2020). Cross-Petitioner

does not refute that she served notice of the subpoena on Petitioner on the same day the

subpoena was served on the Samonte Clinic, malting it effectively impossible for Petitioner's

counsel to object prior to the production. Decl. of Dean A. Manglona in Support of Jung Ye

Kang's Opp. to Anthony Ulloa's Mot. to Quash Subpoena to Samonte Medical Clinic (Nov. 6,

2020), Min. Entry, at 9:45:52-9:48:15 AM (July 6, 2020). By failing to provide notice of the

subpoena to Petitioner, Cross-Petitioner's service of the notice did not comply with the prior

notice requirements of Rule 45(b)(1).

This timeline of events-specifically, that the service of the notice of the subpoena on

Petitioner, the service of the subpoena on the Samonte Clinic, and the production of the

subpoenaed documents to Cross-Petitioner all occurred on the same day, November 4, 2020-

reveals a violation of the prior notice requirements of Rule 45(b)(l).

2. The Appropriate Sanction for the Violation of GRCP Rule 45(b)(1) in This Case Is Admonishment.

Having found that Cross-Petitioner's counsels' conduct violated GRCP Rule 45(b)(l), the

Court must now determine the appropriate remedy. A violation of Rule 45(b)(1) can warrant

sanctions. Mann la Univ of Cincinnati, 114 F.3d 1188, at *5, (6th Cir. 1997) (where the Court

held that even though there is no federal physician-patient privilege, and therefore the opposing

party could not have prevented the production of the medical records, the Court upheld the trial

coult's imposition of sanctions by prohibiting the use of the documents as evidence and ordering

13 a 11

Ia a \ • DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19; In the Matter of the Estate ofByong H Kang

attorney's fees for the counsel's violation of Rule 45).

General Rule ("GR")2.1 of the Local Rules of the Superior Court of Guam provides:

The violation of or failure to conform to any of these General Rules, the Guam Rules of Civil Procedure, or the Local Rules of the Superior Court of Guam-Civil Rules shall subject the offending party or counsel to such penalties, including monetary sanctions and/or the imposition of costs and attorney's fees to opposing counsel, as the Court may deem appropriate under the circumstances.

Furthermore, although it should be used narrowly, a violation of the notice requirements

of Rule 45 allows the Court "to fashion an equitable remedy." In re Letters Rogatoryfrom Tokyo

Dist. ProsecutorS Ojice, Tokyo, Japan, 16 F.3d 1016, 1020-22 (9th Cir. 1994), see Moylan,

2018 Guam 8 11 24, Fleming 14 Quigley, 2003 Guam 4 1127 (noting that Courts have '"inherent

equitable authority' to develop several exceptions to the American Rule" regarding attorney's

fees). In Guam, the Court is authorized to award attorney's fees as a fee-shifting sanction in

certain "equitable circumstances." Matter of Guardianshzp of Moylan, 2018 Guam 8 1[ ll.

Regarding the appropriate "equitable remedy" for a violation of Rule 45, "[t]he subpoena

power is a substantial delegation of authority to private parties, and those who invoke it have a

grave responsibility to ensure it is not abused. Informing the person served of his right to object

is a good start," and "[f]ighting a subpoena in court is not cheap[.]" Theofel u Fared-Jones, 359

F.3d 1066, 1074 (9th Cir. 2004). Additionally, iii consideration of: 1) the timeline admitted to by

Cross-Petitioner-that the service of the notice of the subpoena on Petitioner, the service of the

subpoena on the Samonte Clinic, and the production of the subpoenaed documents to

Cross-Petitioner all occurred on the same day, November 4, 2020, 2) Cross-Petitioner's

dismissive response to these events by simply asserting that the Motion to Quash is moot due to

production of the documents, and 3) Cross-Petitioner's lack of any explanation as to why no

prior notice was given, this Come finds that Cross-Petitioner's actions were not a "mistake," such

that sanctions would be inappropriate. See Zambrano v City of Tustin, 885 F.2d 1473, 1480 (9th

Cir. 1989).

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang

In light of these circumstances, pursuant to GR2.1 and in an effort to deter such improper

conduct, the Court would be within its authority to order that Cross-Petitioner and her attorneys

pay Petitioner's attorney's fees for the costs associated with preparing and arguing the Motion to

Quash. Ho we ve r , a t this e a r ly sta ge o f the p r o c e e d ings, the Co u r t find s tha t fo r m a l

admonishment of Cross-Petitioner's (and her attorneys') conduct is a sufficient sanction for the

above violation. The Court additionally warns Cross-Petitioner to strictly comply with the Civil

Rules of Procedure and the Court's Local Rules, as future violations of the Civil Rules of

Procedure or the Court's Local Rules may result in an award of attorney's fees to the Petitioner

or odder monetary sanctions.

11. Motion to Compel.

Cross-Peti ti oner's Moti on to Com pel seeks the producti on of ni ne (9) categori es of

documents as follows :

1) all documents reflecting Petitioner's acceptance of his appointment as the successor trustee of the By org H. Kang Trust, 2) all documents reflecting any communications or discussions relating in any way to the Kang Trust from May 1, 2014 until May 31, 2019, by and between Petitioner and a) By org H. Kang, b) Sin Jae Kang, c) Suk Jin Andrew Kang, d) Suk Hoon Paul Kang, e) Jung Ye Kang, t) Carlos Taitano, and g) other third parties, 3) all documents reflecting any communications or discussions relating in any way to the Last Will & Testament of By org H. Kang, from May 1, 2014 until May 3 l, 2019 between Petitioner and the persons listed above, 4) all documents relating in any way to the Kang Trust and Kang Will, 5) all documents reflecting all assets (including cash) held in trust under the K a ng T r u st , inc lu d ing b u t no t lim it e d t o a ll b a nk a nd c r e d it c a r d statements, 6) all records, documents or other materials in your possession, custody or control not produced in response to requests No. 1 through 5, which pertain in any way to the Kang Trust or Kang Will, 7) all retainer fee agreements with any lawyer or consultant relating to the Trust, the Will, and this Probate Action, 8) all documents reflecting payments or transfer of any personal or real property from By org Kang, the Trust, or any entity owned by him, and 9) all medical records and reports, relating to By org Kang.

15 1

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19,' In the Matter of the Estate ofByong H Kang

DeCl. of Joyce C.H. Tang in Support of Mot. to Compel Production of Documents from Anthony

Ulloa, at112, Exhibit 1 (Dec. 3, 2020).

The grandsons of the Decedent and purported heirs to his estate, Suk Hoop Paul Kang

and Suk Jin Andrew Kang (the "Heirs"), joined in support of Cross-Petitioner's Motion to

Compel. Min. Entry, 9:58:00-10:00 a.m. (July 6, 2020). Through counsel, the Heirs explained

that discovery would be useful because the Heirs do not know Petitioner and they are struggling

to identify the assets of the Decedent's estate. Id.

In response to the Motion to Compel, Cross-Petitioner filed a: 1) Preliminary

Memorandum of Points and Authorities in Support of Opposition to Cross-Petitioner's Motion to

Compel Production of Documents on December 14, 2020 ("Preliminary Opposition to Motion to

Compel"), and 2) a Restated or Supplemented Memorandum of Points and Authorities in

Support of Opposition to Cross-Petitioner's Motion to Compel on December 31, 2020

("Supplemental Opposition to Motion to Compel").

A. The Court Will Not Consider the Supplemental Filings of the Parties.

Cross-Petitioner objects to the Petitioner's filings of a supplemental opposition and

moves the Court to not consider it. Reply to Preliminary Opp., at 2-3. Petitioner explains that

the reason for his staggered or supplemented briefing is due to a hearing scheduled for December

15, 2020 causing the briefing schedule to be "advanced." Preliminary Opp., at 2. In

Cross-Petitioner's Reply to Petitioner's Preliminary Opposition, Cross-Petitioner asserts that the

standard briefing schedule under Civil Rule ("CVR") 7.1 of the Local Rules of the Superior

Court of Guam applies "unless ordered by the Court." Reply to Preliminary Opp., at 2 (Dec. 15,

2020). Cross-Pedtioner further notes that at the December 3, 2020 hearing, the Court ordered the

parties to complete their briefing on Cross-Petitioner's Motion to Compel before the hearing on

the Motion to Compel which it set for December 15, 2020. Id.

Cross-Petitioner is correct that the default briefing schedule outlined in CVR 7.1(c)

16 T

DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

applies "unless otherwise ordered by the court." CVR 7.1(a). Further, pursuant to CVR7.1(k),

the Court "need not consider motions, oppositions or briefs or memoranda that do not comply

with [Rule 7. 1 -1"

Alth ough th is case was n ot assign ed to th is Cour t un til weeks later , a r eview of th e r ecor d

fr om December 3, 2020 con fir ms th at Judge Sukola or der ed th e par ties to complete th e br iefin g

sch edul e befor e t h e Decem ber 15, 2020 h ea r i n g. Pet i t i on er wa s pr esen t wi t h coun sel , At t or n ey

C on cep ci on , a t t h e Decem ber 3 , 2 0 2 0 h ea r i n g wh en t h e C ou r t or d er ed t h e sh or t en ed br i efi n g

sch edule. Noth in g in th e r ecor d in dicates, an d Petition er does n ot allege, th at Petition er objected

to th e Cour t's or der s. Min . En tr y, 3:14-33-3:38:54 PM (Dec. 3, 2021).

Wh ile it is tr ue th at Cr oss-Petition er did n ot file a wr itten application to sh or ten time on

th e Motion to Compel, th e Cour t n on eth eless gr a n ted Cr oss-Petition er ' s r equest to expedite th e

br ie' dn g. Id. Alth ough th e Cour t did n ot h ear th e Motion to Compel on December 15, 2020, th e

Petition er did n ot r equest to supplemen t h is br iefin gs at th at time, n or did th e Cour t r equest it.

Min. Entr y, at 3:00:57-3:07-13 PM (Dec. 15, 2020).

Accor d i n g l y, p u r su a n t t o C VR 7 . 1 ( k ) a n d for g ood ca u se, t h i s C ou r t wi l l n ot con si d er

Petition er 's Supplemen tal Opposition to Motion to Compel an d th e declar ation s tiled in suppor t

t h e r e of fi l e d on D e c e m be r 3 1 , 2 0 2 0 . Beca u se t h e C ou r t wi l l n ot con si d er t h e su p p l em en t a l

br iefin g, th e Cour t addition ally will n ot con sider Cr oss-Petition er 's Reply in Suppor t of Jun g Ye

Kan g's Motion to Compel filed on Jan uar y 14, 2021 .

B. Cross-Petitioner Failed to Comply With CVR 37.1.

Petition er a r gues th a t th e Cour t sh ould den y Cr oss-Petition er ' s Motion to Compel ba sed

on Cr oss-Pet i t i on er ' s Fa i l ur e t o Com pl y wi t h CVR 37. 1 of t h e Loca l Rul es of Ci vi l Pr ocedur e.

Pr el i m i n a r y Opp. , a t 5-10. In r espon se, Cr oss-Pet i t i on er a sser t s t h a t t h i s a r gum en t i s fr i vol ous

beca use sh e a t t a ch ed a "pr oposed st i pul a t i on " t o h er m ot i on a n d Pet i t i on er ' s r efusa l t o si gn t h e

st i pul a t i on wa s "don e i n ba d fa i t h a n d for t h e pur pose of del a yi n g t h e fi l i n g" of t h e Mot i on t o

17 l '1

DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-]9,' In the Matter of the Estate ofByong H Kang

Compel. Reply to Preliminary Opp., at 5.

CVR 37.1 provides:

a) Prior to the filing of any motion relating to a discovery dispute, counsel for the parties shall meet or attempt to meet in a good faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It shall be the responsibility of counsel for the moving party to arrange for the conference which shall be held within a reasonable time. (b) If counsel are unable to settle their differences, they shall formulate a written stipulation specifying separately and with particularity each issue that remains to be determined at the hearing. [ ... ] (c) Briefing and oral argument of all discovery motions shall be scheduled pursuant to CVR 7. l . (d) If the discovery disputes are found to be frivolous or based on counsel's failure to cooperate with each other in good faith, sanctions will be imposed at the discretion of the Court.

The parties appear to agree that they met and conferred, in accordance with CVR 37.1(a),

on December 1, 2020. Notwithstanding their meeting, the Court notes that it is the moving

party's responsibility to arrange for the meeting to be "held within a reasonable time." In this

case, Cross-Petitioner wrote to Petitioner on November 30, 2020 at 9:03 a.m., asldng for

Petitioner's availability that same day between 11:00 a.m. and 2:00 p.m. Decl. of Joyce Tang in

Support of Mot. to Compel, at 114, Exhibit 3 (Dec. 3, 2020). Petitioner responded that he could

not be available that day, but offered to meet the next day, on December l, 2020, to which

Cross-Petitioner agreed. Id.

Two days after the conference, on December 3, 2020 at 7:59 a.m., Cross-Petitioner

emailed Petitioner with a copy of her proposed stipulation regarding the discovery dispute and

asked for his comments by 10:00 a.m. that day. Id., at 116, Exhibit 6. At 9:24 a.m., Petitioner

emailed his response informing Cross-Petitioner that he would need more time to review the

drafted stipulation. Id. Further, Petitioner stated he would prepare revisions which would

include "all of [his] client's objections or responses that are in issue including [his] client's

contentions." Id. Finally, Petitioner stated he would return his revisions by no later than the

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-19; In the Matter of the Estate ofByong H Kang

morning of December 4, 2020. Id. Rather than waiting less than a day to file an agreed upon

stipulation, as required by CVR 37.1(b), Cross-Petitioner. filed her Motion to Compel on

December 3, 2020 at 12:46 p.m. without the required stipulation.

The Court emphasizes that a proposed stipulation defeats the purpose of CVR 37.l(b)'s

requirement that when counsels are unable to settle their differences, "they shall formulate a

written stipulation specifying separately and with particularity each issue that remains to be

determined at the hearing." A review of Petitioner's December 3, 2020 emailed response to

Cross-Petitioner's proposed stipulation reveals that had Cross-Petitioner waited for Petitioner's

revisions, the parties likely could have prepared a stipulation compliant with the requirements of

CVR 37. l (b).

Thus, Cross-Petitioner's Motion to Compel and attachments do not display sufficient

assertions of fact which might satisfy the Court's local rules requiring that Cross-Petitioner

attempt to resolve the dispute in good faith. While it is clear the parties disagree about the

requested production of certain documents or information, it is not clear that Cross-Petitioner has

made a good faith effort to comply with the CVR 37.1 and outline the respective positions of the

parties in a stipulated, i.e. agreed upon, document. Furthermore, Cross-Petitioner offers no

explanation for, and nothing in the record appears to justify, a reason why Cross-Petitioner had to

file her Motion to Compel on December 3 and could not wait until Petitioner had a reasonable

opportunity to provide revisions to the stipulation.

Such stipulation is not merely a formality, but rather is a critical document which is

designed to bode aid the parties in resolving their disputes, or at least narrowing the contested

issues, and to assist the Court in understanding what issues rernain.10 By deliberately electing to

not comply with this requirement, especially in the face of Petitioner's express desire to form a

10 E.g., Donne v Kmart Corp., CV0188-14, Decision & Order ("D&O") at 4-6 (Jan. 22, 2015), Korasan, LLC v Paul is' Guam, Inc., et al., CV0755-17, D&O, at 4 (Jan. 3, 2019), Chamorro Equines, Inc., v Vivian McCurdy, et al., CV0408-13, D&O, at 13-15 (Jan. 13, 2015).

19 vi l I

DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang

stipulation in good faith, Cross-Petitioner failed to meet its obligation to resolve this discovery

dispute prior to involving the Court. Absent the required stipulation, the Court must deny

Cross-Petitioner's Motion to Compel."

111. Motion for Protective Order.

Although the Court finds the specific requests and positions of Petitioner in his Motion

for Protective Order to be somewhat unclear, the Court is able to identify the following requests

and/or positions: 1) only Petitioner qualifies to be the executor of the Decedent's Will and to

administer his estate, 2) a protective order should be issued prohibiting Cross-Petitioner and her

attorneys from conducting further discovery and ordering them to return all of the Decedent's

confidential or proprietary information that has been discovered thus far, and 3) die deposition

subpoena for Petitioner should be quashed. See Mot. for Protective Order, 2-19.

In response, Cross-Petitioner asserts that: I) Petitioner improperly uses his Motion for

Protective Order to discuss who is entitled to be executor of the Estate, 2) the documents that

Petitioner seeks to be returned are not "confidential nor proprietary", and 3) Cross-Petitioner

properly noticed Petitioner's deposition, so his motion should be denied. See Opp. to Mot. for

Protective Order (Dec. 15, 2020).

A. At This Time, the Issue Before the Court Is Not Who Is Entitled to Be the Personal Representative of the Estate.

The Court partially agrees with Cross-Petitioner that the assertions on pages 2 through 6

of Petitioner's Motion for Protective Order are not appropriate to include in a request for a

discovery protective order. Petitioner requests that the Court take judicial notice of several

ongoing litigations in order to support Petitioner's argument that he is the only person qualified

to be appointed as the personal representative of Decedent's estate. Mot. for Protective Order,

11 The Court notes that a review of Cross-Pedtioner's subpoena indicates that at least some of the requests appear generally relevant, within the reasonable limits of Petitioner's control or possession, to the issue of whether Petitioner is competent to serve as the executor of Decedent's estate and would likely be discoverable.

20 I I

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19,' In the Matter of the Estate ofByong H Kang

2-6.

While it "is proper to take judicial notice of court files," the Court can only take judicial

notice of "the truth of facts in certain documents, including past court orders, findings of fact and

conclusions of law, and judgments." In re NA., 2001 Guam 7 1] 58. Regarding all other

submissions on file, "a court should only take judicial notice of the fact of their existence, and

not the truth of the facts within." Id.

The Court is aware of the ongoing litigations cited to by Petitioner in his Motion for

Protective Order. Petitioner cites to these cases in order to support his assertion that everyone

aside from himself must be disqualified from serving as the personal representative of the

Decedent's estate. Mot. for Protective Order, at 2-6. However, at this time, the issue before the

Court is not who is or is not qualified (or disqualified) from serving as the estate's personal

representative. Rather, at this stage, the broad issue before the Court is the scope of discovery

that should be permitted to Cross-Petitioner, the decedent's purported surviving spouse, as a

litigant contesting the competency of Petitioner to serve as the personal representative of the

Decedent's estate.

Pursuant to Rule l2(f) of the GRCP, "upon the court's own initiative at any time, the

court may order stricken from any pleading ... any redundant, immaterial, impertinent, or

scandalous matter." Although the Court does not elect to formally "strike" pages 2 through 6 of

Petitioner's Motion for Protective Order, the Court does rind the assertions raised in those pages

to be immaterial and impertinent to the issues currently before the Court. Accordingly, because

the issue of who to name as executor is not yet before the Court and because the Court cannot

take "judicial notice" of the truth of any facts alleged in the ongoing cases cited to by Petitioner,

the Court will not address the assertions made in pages 2 through 6 of Petitioner's Motion for

21 4

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang

B. The Cross-Petitioner Is Entitled to Conduct Discovery.

Petitioner requests a blanket order from the Court requiring Cross-Petitioner to cease and

desist all further discovery involving the Decedent's estate andto return all of the Decedent's

privileged, confidential, proprietary, or other files, records, documents, or information. See

Proposed Order for Sequestration and Return of Decedent's Records (Dec. 10, 2020). The issues

brought before the Court in Petitioner's Motion for Protective Order are limited due to

Petitioner's overly broad and vague requests and because the only specific document or

information identified by Petitioner is the Notice of Undisclosed Cash Assets of the Estate and

Request for Accounting filed by Cross-Petitioner on December 3, 2020.

1. A Blank et Protective Order Prohibiting Discovery Is Not Warranted.

The Court is unable to grant Petitioner's request for a blanket protective order prohibiting

Cross-Petitioner from conducting discovery in this matter. First, GRCP Rule 26(c), which

governs protective orders in the context of discovery, provides that "for good cause shown," the

court "may make any order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense[.]" Here, the broad, generalized

requests of Petitioner in his Motion for Protective Order prohibit the Court from being able to

make a determination as to whether "good cause" exists to issue a protective order requiring

Cross-Petitioner to stop all discovery and return all "confidential or proprietary" information.

See Mot. for Protective Order, at 16.

Second, although not explicitly addressed by the Guam Supreme Court, the discovery

procedures found in the Rules of Civil Procedure are available for use in probate proceedings.

See 15 GCA § 3423, e.g., Mote v. Super: Cr., 67 Cal.Rptr.3d 303, 355 (Ct. App. 2007), Morris

Stulsaft Foundation v. Super: Cr., 54 Cal.Rptr. 12, 16 (Ct. App. 1966) (where the contestants

challenged the decedent's will and sought an order from the court compelling the deposition of

22 DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-I9,' In the Matter of the Estate.ofByong H Kang

the will's subscribing witness),Forthmann v. Boyer, 118 Cal.Rptr.2d. 715, 722 (Ct. App. 2002).12

"As a result, parties to probate proceedings 'are entitled to conduct discovery--e.g.,

depositions, interrogatories, requests for admissions, etc."' Mora, 67 Cal.Rptr.3d at 355 (holding

that the contesting heir is entitled to conduct discovery when she objected to the final accounting

of the estate), but see Voigt v Super: Ct., 304 P.2d 135, 136 (Cal. Ct. App. 1956) (holding that

where the brother of the decedent and the widow filed competing petitions for letters of

administration, but neither petition raised the issue of competency of the other petitioner, the

brodie was not entitled to take the deposition of the widow for the purpose of determining her

competency).

Rule 26(b) of the GRCP provides :

Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

In the context of probate contests, "matters sought are properly discoverable if they will

aid in a party's preparation" for the petition hearing. Forthmann, 118 Cal.Rptr.2d. at 723 (where

an interested party sought discovery to identify the assets of the estate when it did not agree with

the personal representative's final accounting). Because all issues and arguments that will come

to light often cannot be ascertained at the time when discovery is sought, "courts may

appropriately give an applicant substantial leeway," especially when the precise issues of the

litigation and the legal standards governing those issues are not clearly established. Id.

Furthermore, "where discovery is sought as to a non-privileged matter which is directly relevant

12 Because the Guam Legislature enacted a probate code substantially similar to the California Probate Code, the Court looks to California case law for interpretation. Zahnen v Limtiaco, 2008 Guam 5 'H 17.

23 DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-19; In the Matter of the Estate ofByong H Kang

to the issues before the court, there is no room for the exercise of discretion, for the party seeldng

to discover is entitled to it as a matter of right." Morris Stulsaft Foundation, 54 Cal.Rptr. at 17.

The controversy at issue in this litigation arises out of Cross-Petitioner's challenge to

Petitioner's competency to serve as the executor of the Decedent's estate. Pursuant to 15 GCA §

170l(c)(5), no person is competent to serve as an executor who "is adjudged by the Superior

Court of Guam incompetent to execute the duties of the trust by reason of ... improvidence, or

want of understanding or integrity." Therefore, non-privileged documents or information that

may aid Cross-Petitioner in determining whether Petitioner may be incompetent to serve as the

executor are clearly discoverable. Accordingly, the Court must deny Petitioner's request to issue

a blanket order requiring Cross-Petitioner to cease and desist all further discovery involving the

z. The Documents and Information Attached to the Notice of Undisclosed Cash Assets of the Estate and Request for Accounting Are Not Confidential.

On December 3, 2020, Cross-Petitioner tiled a Notice of Undisclosed Cash Assets of the

Estate and Request for Accounting ("Notice of Assets"). Attached to the Notice of Assets are: 1)

a receipt from "Chris Kang, on behalf of By org Hi Kang" for a cash amount of $30,000 "on

January 22, 2016 for replenishment of the Advance Retainer in Kang u Guam Constr. Co., Inc.,

Superior Court of Guam Civil Case No. CV0602-l" signed by Carlos L. Taitano ("Exhibit A"),

2) a copy of a check purportedly signed by By org Hi Kang on January l, 23, 2019, paid to the

order of Brooks Concepcion Law, PC in the amount of $10,000.00 as a "retainer fee," and a copy

of the receipt of the check by Brooks Concepcion Law, PC ("Exhibit B"), and 3) a copy of a

second check purportedly signed by By org Hi Kang on March 20, 2019, paid to the order of

Brooks Concepcion Law, PC in the amount of $10,000.00 as a "retainer fee." In Petitioner's

Motion for Protective Order, Petitioner alleges that these documents contain "confidential" and

"proprietary" information and dierefore Cross-Petitioner should be ordered to return all copies of

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19,' In the Matter of the Estate ofByong H Kang

such documents. Mot. for Protective Order, at 13-17.13

The party asserting that an evidentiary privilege protects the disclosure of information

sought through discovery has the burden to demonstrate that the privilege applies to the

information in question. See Tornado v. US., 840 F.2d 1424, 1426 (9th Cir. 1988). The Ninth

Circuit has repeatedly held that fee information between an attorney and his client is generally

not privileged. Id. (holding that the clients may be compelled to testify about the amount, date

and form of attorneys' fees paid). "Payment of fees is incidental to the attorney-client

relationship, and does not usually involve disclosure of confidential communications arising

from the professional relationship." Id. In Tornay, the Ninth Circuit held that there is sometimes

a narrow exception to this mle limited to "exceptional circumstances" where "disclosure of the

client's identity" would reveal "information that is tantamount to a confidential professional

communication." Id. at 1427.

Here, Petitioner has not offered any facts to support a finding that the documents or

information contained in Cross-Petitioner's Notice of Assets would fall within the narrow

exception described in Tornay. See Mot. for Protective Order, Reply to Opp. to Mot. for

Protective Order. Additionally, Petitioner's briefs do not contain any case law revealing whether

any other exceptions to this rule may exist or apply. Id.

Accordingly, this Court must deny Petitioner's request to issue an order requiring

Cross-Petitioner return and destroy all copies of the documents or information contained in the

Notice of Assets. The Court is unable to further address Petitioner's broad request that the Court

order Cross-Petitioner to return and destroy all privileged or confidential information discovered

thus far without more specificity from Petitioner identifying what that may be. 14

13 The Court will not address the Cross-Petitioner's "requests" in the Notice of Assets, as a "Notice" is not the proper way to bring a request before the Court. See GRCP 7(b), CVR 7. 1 . 14 If there are other specific documents or information that Cross-Petitioner seeks to discover which Petitioner believes are protected by an evidentiary privilege, Petitioner should utilize a privilege log as authorized by Rule 26(b)(5) of the GRCP.

25 > r

DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PROI22-]9,' In theMatter of the Estate ofByong H Kang

c. The Request to Quash the Petitioner's Deposition Subpoena Is Granted.

Lastly, Petitioner requests that the Court issue a Protective Order quashing

Cross-Petitioner's subpoena to depose Petitioner, Anthony Raymond Ulloa ("Deposition

Subpoena"). Petitioner asserts that Cross-Petitioner did not in good faith comply with the

requirements of Rule 26 of the GRCP and its accompanying local rules and that the subpoena

merely serves to annoy, embarrass, oppress, or unduly burden Petitioner and his attorneys. Mot.

for Protective Order, at 17-18. In response, Cross-Petitioner argues that she did attempt to

arrange an agreed upon deposition time pursuant to CVR 26, but that Petitioner's only response

was that Cross-Petitioner's proposed dates were unacceptable. Opp. to Mot. for Protective

Order, at 4.

Rule 30(b)(1) of the GRCP requires that "a party desiring to take the deposition of any

person upon oral examination shall give reasonable notice in writing to every other party to the

action." Further, CVR 26.2 of the Local Rules of the Superior Court provides:

(c) Lawyers shall, when practical, consult with opposing counsel before scheduling hearings and depositions, in a good faith attempt to avoid scheduling conflicts. (d) When scheduling hearings and depositions, lawyers shall communicate with opposing counsel in an attempt to schedule them at a mutually agreeable time.

A determination of whether reasonable notice of a deposition was given pursuant to Rule

30(b)(l) is a fact-specific inquiry given the circumstances and posture of the particular case.

E t . , In re Sulfuric Aeia' Antitrust Litigation, 231 F.R.D. 320, 327 (N.D. Ill. 2005), US. 14 Pnilzp

Morris, Inc., 312 F. Supp. 2d 27, 36-37 (D.D.C. 2004), Paul M Winco Holdings, Inc., 249 F.R.D.

643, 656 (D. Idaho 2008).15 Commonly, courts find that at least five business days' notice is

required to constitute reasonable notice. See, e.g., Paige v. Commissioner, 248 F.R.D. 272, 275

(C.D. Cal. 2008) (Ending that fourteen days' notice was reasonable), Jones v US., 720 F. Supp.

15 These cases analyzed the meaning of Rule 30(b)(1) of the FRCP, which is substantively identical to Rule 30(b)(l) of the GRCP.

26 x

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19; In the Matter of the Estate ofByong H Kang

355, 366 (S.D.N.Y 1989) (holding that eight days' notice was reasonable), Vardon Gold Co., Inc.

v Supremes Gold Sales, Inc., N o . 8 9 - C V - 2 6 5 4 , 1 9 8 9 W L 1 5 3 3 3 5 , * l - 2 ( N . D . I l l . , Nov. 2,

1989) (f our days' notice was unreasonable). Howev er, ev en ten business days' notice may

sometimes be unreasonable where the case is "exceedingly complex" and the party serving the

subpoena is "keenly aware" of other ongoing "discov ery disputes." Sulfuric Acid, 231 F.R.D. at

327-28.

In this case, Cross-Petitioner served the Deposition Subpoena on Petitioner on December

4, 2020, less than five (5) business days prior to the scheduled deposition date (December 10,

2020). Decl. of Georgette Concepcion, at 118-9, Exhibit F-G (Dec. 10, 2020). Counsels met and

conferred on December 9, 2020 by telephone, and Petitioner's counsel, Attorney Concepcion

informed Cross-Petitioner's counsel that she was not available for the deposition on December

10, 2020. Decl. of Joyce Tang, at114, Exhibit 3 (Dec. 15, 2020). In response, Cross-Petitioner's

counsel offered December 11 (Friday), December 12 (Saturday), or December 14 (Monday).

When the parties could not agree on a deposition date, Petitioner filed the present Motion for

Protective Order requesting that the Court quash the Deposition Subpoena.

Despite Cross-Petitioner's contention that she is not required to obtain opposing

counsel's consent in scheduling the deposition, CVR 26.2 in fact does require that when

scheduling depositions, "lawyers shall communicate with opposing counsel in an attempt to

schedule them at a mutually agreeable time. as Both counsels' declarations indicate that

Cross-Petitioner's counsel did not attempt to communicate with Petitioner's counsel regarding

the deposition date prior to sewing the Deposition Subpoena which scheduled the deposition for

December 10, 2020. Decl. of Georgette Concepcion, at 1 8-9, Exhibit F-G (Dec. 10, 2020),

Decl. of Joyce Tang, at 1]4, Exhibit 3 (Dec. 15, 2020).

The posture of this case at the time Cross-Petitioner served her Deposition Subpoena on

Petitioner was contentious and multiple discovery disputes were already ongoing. Thus, in the

27 u

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PR0122-]9,' In the Matter of the Estate ofByong H Kang

circumstances of this case, the Court finds that less than five days' notice of the deposition date

is unreasonable, especially in light of Cross-Petitioner's failure to comply with CVR 26.2(d).

Accordingly, the Court must quash the Deposition Subpoena served on Petitioner on December

4, 2020. Notwithstanding the Court's decision to quash die Deposition Subpoena, the Court

reiterates its earlier Ending that non-privileged documents or information that may aid

Cross-Petitioner in determining whether Petitioner may be incompetent to serve as the executor

are discoverable. Further, Cross-Petitioner is entitled to depose Petitioner, if the information

sought is relevant or will reasonably lead to the discovery of relevant material. See GRCP 26(b),

Compare Mora, 67 Cal.Rptr.3d at 355, with Voigt v Super: Cr., 304 P.2d at 136. Therefore, as the

Court denied Petitioner's request for a protective order, this decision shall not preclude

Cross-Petitioner from reissuing any lawful subpoenas and serving them in accordance with the

Guam Civil Rules of Procedure and the Court's local rules, including providing reasonable notice

and communicating with opposing counsel to attempt to schedule an agreed upon date.

CONCLUSION

Based upon the foregoing reasons and in light of the applicable law, the Court hereby

ORDERS that:

1. Petitioner's Motion to Quash is GRANTED, and Cross-Petitioner is O R D E R E D

to continue to sequester the Decedent's medical records and any copies it has, and may not use or

disclose the information contained therein, until further order of the Court,

2. Cross-Petitioner is AD M O NI S HED for the violation of Rule 45(b)(l). The Court

admonishes Cross-Petitioner to comply with the Civil Rules of Procedure and the Court's Local

Rules, as future violations of the Civil Rules of Procedure or the Coult's Local Rules may result

in further sanctions,

3. Cross-Petitioner's Motion to Compel is DENIED,

28 Lu

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DECISION AND ORDER (Motion to Quash; Motion to Compel; Motion for Protective Order) PRO]22-19; In the Matter of the Estate ofByong H Kang

4. Petitioner's Motion for Protective Order is GRANTED IN PART and DENIED

IN PART as follows:

a. The Court denies Petitioner's request for a blanket protective order and

denies Petitioner's request to order that Cross-Petitioner return or destroy the information

contained in Cross-Petitior1er's Notice of Assets. However, the Coult's denial of these requests

shall not preclude Petitioner from seeldng such relief in the future, if warranted under the

circumstances and in accordance with the rules,

b. The Court grants Petitioner's request to quash Cross-Petitioner's

subpoena to depose Petitioner based on Cross-Petitioner's failure to comply with Civil Rules of

Procedure and the Court's local rules. However, the Court's decision to quash the subpoena shall

not preclude Cross-Petitioner from conducting future discovery in accordance with such rules,

and

5. A11 counsels of record who have entered an appearance in the above-captioned

matter shall meet and confer for the purpose of preparing a joint proposed Scheduling Order and

Discovery Plan pursuant to CVR 16.1. The proposed Scheduling Order shall be filed by

October 29, 2021. A Scheduling Conference shall be held remotely on November 8, 2021 at

9:00 a.m.

0 5 OCT 2021 SO ORDERED:

HOD 0 LE DANAI A. GU RREZ Judy u nor au of Gun

To appear, go to: https://guamcourts-org.zoorn.us, enter the Meeting ID: 839 7874 0380 and Passcode: 189701, or you may call into the courtroom at 671-475-3207.