$"i z £- E` z L it 8UPEi3<{GFi CGURT GF {5U.~L§§lv; 11 ma I is go 2 CLER5Q OF COURT CLER1, OF 3 IN IN THE THE SUPERIOR SUPERIOR COURT COURT oF OFG11'Am,.._ GJ:r;AM .- ».~ 4
5 OF GUAM, THE PEOPLE OF GUAM, 6 Case No. CF0446-23 7 vs.
8 ARTHUR DECISION DECISION ANDAND ORDER 8 ARTHUR U. U. SAN SAN AGUSTIN, AGUSTIN,et al, eta/, (Motion (Motion for Protective Order) Protective Order) 9
10 10 Defendant.
11 11
12 INTRODUCTION 13 13 This matter matter came came before the the Honorable Honorable John John C. Terlaje Terlaje on on January January 22, 2024, 2024, for an an 14 14 Evidentiary Hearing, in which the the People raised a Motion Motion for aa Protective Protective Order Order to to prevent prevent the 15 15
16 16 hearing from continuing. hearing from continuing.Attorney AttorneyGeneral GeneralDouglas DouglasMoylan Moylan("Moylan") ("Moylan") and and Assistant Attorney
17 General Lewis Harley General Lewis Harley ("Harley") ("Harley") appeared onbehalf appeared on behalfofthe the People. Joaquin JoaquinArriola Arriola("J. ("J.Arriola") Arriola")
18 18 appeared forArthur appeared for ArthurU. U.San SanAgustin Agustin("Defendant"). ("Defendant").G. G.Patrick PatrickCiville Civille("Civille") ("Civille") appeared appeared for
19 19 Masatomo Nadeau ("Nadeau"), ("Nadeau"), who whojoined joinedDefendant. Defendant.Based Basedon onthe therelevant relevantlaw lawand and authorities authorities 20 the Court now issues the following issues the following decision decision and and order order DENYING the the People's Motion for aa 21 Protective Order. 22 BACKGROUND 23 On August 21, 2023, 2023, the theOffice Office of ofthe the Attorney AttorneyGeneral Generalindicted indictedDefendant Defendantand and Nadeau 24 with five five charges: charges: (1) (1) Tampering Tamperingwith withPublic PublicRecords, Records, (2) (2)Obstructing ObstructingGovernment Government Functions, Functions, 25 (3) Official OfficialMisconduct, Misconduct,(4) (4)Obstructing Obstructing Governmental Governmental Functions, and(5) Functions, and (5) Official Misconduct. Misconduct. 26
27 Decision Decision and and Order Case No. CF0446-23,People CF0446-23, v. Arthur U U San San Agustin Agustin Page1 1 of of 5 5 11 Superseding Indictment Superseding Indictment(August (August 21, 21, 2023). 2023). These charges were all These charges all brought brought regarding regarding both both 2 Defendant's and Defendant's and Nadeau's Nadean's roles roles in the Department of Public the Department Public Health Health and and Social Social Services Services 3 4 ("DPHSS").On ("DPHSS"). OnSeptember September1, 2023, Defendant filed aa "Motion 1, 2023, "MotiontotoDisquaIu§/ Disqualify the the Office of ofthe the 4 5 Attorney General," claiming that that disqualification disqualification was was warranted warrantedas asthe theAG's Office, through AG's Office, through 5
6 6 former Assistant former AssistantAttorney Attorney General General("AAG") Sandra Miller, ("AAG") Sandra Miller, represented represented DPHSS. DPHSS. Mot. Mot. for
7 7 Protective Order, Protective Order, (January (January19, 19,2024). 2024).The TheOffice Officeof ofthe theAttorney AttorneyGeneral General("OAG") ("OAG") filed aa
8 Motion Motion for for Protective Protective Order Order in in response. Id response. Id. 9 DISCUSSION 10 their Motion for In their for Protective Protective Order, Order, the the OAG OAG argues argues that that (1) the the Defendant Defendant fails to 11 11 establish sufficient cause establish cause to conduct an to conduct an evidentiary evidentiary hearing; hearing, (2) that that the the Court Court should should exclude 12 12 under the evidence under Work-Products Doctrine; the Work-Products Doctrine, (3) that that granting granting an an evidentiary evidentiary hearing hearing would 13 13 violate Attorney-Client Privilege; violate Attorney-Client and (4) granting Privilege, and granting an an evidentiary evidentiary hearing hearing will the will violate the 14 14 15 Deliberative Process Deliberative Process Privilege. Privilege.Mot. Mot.for forProtective Order1],r22(January ProtectiveOrder (January 19, 19, 2024). 15 A. Does Does Movant Movant Fail FailtotoEstablish Establish Sufficient Sufficient Cause Cause to Conduct an Evidentiary 16 16 Hearing? 17 17 The OAG OAGargues argues that that "no "no declaration declaration from fromthe theDefendant Defendantor orany any other other witness witness has has been 18 18 19 provided provided that sets sets forth information which would warrant subpoenaing subpoenaingformer former AAG AAG Sandra Sandra 19
20 20 Miller."Mot. Miller." Mot.for forProtective ProtectiveOrder ,r 2(January Order1[2 (January19, 19, 2024). 2024). AAtrial trialcourt court may may grant grant a protective
21 order "to "toprotect protectaaparty partyor orperson personfrom fromannoyance, annoyance,embarrassment, embarrassment, oppression, oppression, or or undue undue th 22 burden or expense." expense." Katakana Kamakanav.v. City City && County ofHonolulu, 446 F.3d 1172 (9 County of lath Cir. Cir. 2006).
23 23 c) of Rule 26(0) of the the Federal Rules of Civil Civil Procedure Procedure requires requires a "particularized showing showing of of good 24 . . , , cause" to protect protect information information from being disclosed. Phillipe Phillipsex ex rel. rel. Estates Estates of ofByrd Byrd v. v. Gen. 25 Motors Corp. Motors (9 th Cir. 1206 (9th Corp. 307 F.3d 1206 Cir. 2002). Defendant Defendant points out, however, however, that that several pages 26
Decision Decision and and Order 27 v. Arthur U. San Case No. CF0446-23, People v. San Agustin Page Page 2 of 5 11 later in the very same brief, the the OAG argues that the Court should "make findings of of fact and 2 of law... conclusions of ... in in light light of ofthe the serious serious ethical ethical allegations allegations and and constitutional issues 3 4 ... before involved... before disqualifying Fulmer v. Harper, 517 disqualifying attorneys from the AG's Office. See Fulmar 4 F.2d 20 (10 Cir, Cir, 1975)." 1975)." Defendant out that on appeal in Fulmer, Defendant then points out 10 th Circuit Fulmar, the 10!1' Circuit 5
66 held that the trial trial court court should should "hold "hold a full full evidentiary evidentiary hearing on the issues posed by the
77 motion motion to disqualify and the response thereto, which hearing should include the taking of of
8 testimony." Fulmer Fulmar v. Harper, 517 F.2d 21 21 (10 Cir, 1975). 1975). Given Given the serious ethical concerns
99 raised by both parties, this Court must must agree with Defendant that there is sufficient Defendant that sufficient cause for an 10 10 evidentiary hearing. 11 11 B. Should Should The TheCourt CourtExclude Exclude Evidence Evidence Under the the Work-Products Work-Products Doctrine? Doctrine? 12 12 OAG argues The OAG argues that that the work~product work-product doctrine protects materials prepared by an 13 13 14 14 United States v. Nobles, 422 attorney acting for their client in anticipation of litigation. See United
15 15 U.S. L.Ed.2d (1975). (1975). Here, Here, the the AOG AOG claims that Defendant seeks to inquire into the team
16 16 responsible for his prosecution as they initiated this case, violating the doctrine. Defendant
17 17 argues that the work-product doctrine, even even ifif itit applies, is an evidentiary issue that can be 18 18 raised by way of objection and does not bar an evidentiary hearing or the calling of of witnesses. 19 19 It is not apparent apparent at at this this time time which which materials materials the the AOG AOG are are claiming to be privileged. The 20 Court agrees that the work-product doctrine is an evidentiary issue and should be raised by way the work-product 21 of objection. 22 C.
Free access — add to your briefcase to read the full text and ask questions with AI
$"i z £- E` z L it 8UPEi3<{GFi CGURT GF {5U.~L§§lv; 11 ma I is go 2 CLER5Q OF COURT CLER1, OF 3 IN IN THE THE SUPERIOR SUPERIOR COURT COURT oF OFG11'Am,.._ GJ:r;AM .- ».~ 4
5 OF GUAM, THE PEOPLE OF GUAM, 6 Case No. CF0446-23 7 vs.
8 ARTHUR DECISION DECISION ANDAND ORDER 8 ARTHUR U. U. SAN SAN AGUSTIN, AGUSTIN,et al, eta/, (Motion (Motion for Protective Order) Protective Order) 9
10 10 Defendant.
11 11
12 INTRODUCTION 13 13 This matter matter came came before the the Honorable Honorable John John C. Terlaje Terlaje on on January January 22, 2024, 2024, for an an 14 14 Evidentiary Hearing, in which the the People raised a Motion Motion for aa Protective Protective Order Order to to prevent prevent the 15 15
16 16 hearing from continuing. hearing from continuing.Attorney AttorneyGeneral GeneralDouglas DouglasMoylan Moylan("Moylan") ("Moylan") and and Assistant Attorney
17 General Lewis Harley General Lewis Harley ("Harley") ("Harley") appeared onbehalf appeared on behalfofthe the People. Joaquin JoaquinArriola Arriola("J. ("J.Arriola") Arriola")
18 18 appeared forArthur appeared for ArthurU. U.San SanAgustin Agustin("Defendant"). ("Defendant").G. G.Patrick PatrickCiville Civille("Civille") ("Civille") appeared appeared for
19 19 Masatomo Nadeau ("Nadeau"), ("Nadeau"), who whojoined joinedDefendant. Defendant.Based Basedon onthe therelevant relevantlaw lawand and authorities authorities 20 the Court now issues the following issues the following decision decision and and order order DENYING the the People's Motion for aa 21 Protective Order. 22 BACKGROUND 23 On August 21, 2023, 2023, the theOffice Office of ofthe the Attorney AttorneyGeneral Generalindicted indictedDefendant Defendantand and Nadeau 24 with five five charges: charges: (1) (1) Tampering Tamperingwith withPublic PublicRecords, Records, (2) (2)Obstructing ObstructingGovernment Government Functions, Functions, 25 (3) Official OfficialMisconduct, Misconduct,(4) (4)Obstructing Obstructing Governmental Governmental Functions, and(5) Functions, and (5) Official Misconduct. Misconduct. 26
27 Decision Decision and and Order Case No. CF0446-23,People CF0446-23, v. Arthur U U San San Agustin Agustin Page1 1 of of 5 5 11 Superseding Indictment Superseding Indictment(August (August 21, 21, 2023). 2023). These charges were all These charges all brought brought regarding regarding both both 2 Defendant's and Defendant's and Nadeau's Nadean's roles roles in the Department of Public the Department Public Health Health and and Social Social Services Services 3 4 ("DPHSS").On ("DPHSS"). OnSeptember September1, 2023, Defendant filed aa "Motion 1, 2023, "MotiontotoDisquaIu§/ Disqualify the the Office of ofthe the 4 5 Attorney General," claiming that that disqualification disqualification was was warranted warrantedas asthe theAG's Office, through AG's Office, through 5
6 6 former Assistant former AssistantAttorney Attorney General General("AAG") Sandra Miller, ("AAG") Sandra Miller, represented represented DPHSS. DPHSS. Mot. Mot. for
7 7 Protective Order, Protective Order, (January (January19, 19,2024). 2024).The TheOffice Officeof ofthe theAttorney AttorneyGeneral General("OAG") ("OAG") filed aa
8 Motion Motion for for Protective Protective Order Order in in response. Id response. Id. 9 DISCUSSION 10 their Motion for In their for Protective Protective Order, Order, the the OAG OAG argues argues that that (1) the the Defendant Defendant fails to 11 11 establish sufficient cause establish cause to conduct an to conduct an evidentiary evidentiary hearing; hearing, (2) that that the the Court Court should should exclude 12 12 under the evidence under Work-Products Doctrine; the Work-Products Doctrine, (3) that that granting granting an an evidentiary evidentiary hearing hearing would 13 13 violate Attorney-Client Privilege; violate Attorney-Client and (4) granting Privilege, and granting an an evidentiary evidentiary hearing hearing will the will violate the 14 14 15 Deliberative Process Deliberative Process Privilege. Privilege.Mot. Mot.for forProtective Order1],r22(January ProtectiveOrder (January 19, 19, 2024). 15 A. Does Does Movant Movant Fail FailtotoEstablish Establish Sufficient Sufficient Cause Cause to Conduct an Evidentiary 16 16 Hearing? 17 17 The OAG OAGargues argues that that "no "no declaration declaration from fromthe theDefendant Defendantor orany any other other witness witness has has been 18 18 19 provided provided that sets sets forth information which would warrant subpoenaing subpoenaingformer former AAG AAG Sandra Sandra 19
20 20 Miller."Mot. Miller." Mot.for forProtective ProtectiveOrder ,r 2(January Order1[2 (January19, 19, 2024). 2024). AAtrial trialcourt court may may grant grant a protective
21 order "to "toprotect protectaaparty partyor orperson personfrom fromannoyance, annoyance,embarrassment, embarrassment, oppression, oppression, or or undue undue th 22 burden or expense." expense." Katakana Kamakanav.v. City City && County ofHonolulu, 446 F.3d 1172 (9 County of lath Cir. Cir. 2006).
23 23 c) of Rule 26(0) of the the Federal Rules of Civil Civil Procedure Procedure requires requires a "particularized showing showing of of good 24 . . , , cause" to protect protect information information from being disclosed. Phillipe Phillipsex ex rel. rel. Estates Estates of ofByrd Byrd v. v. Gen. 25 Motors Corp. Motors (9 th Cir. 1206 (9th Corp. 307 F.3d 1206 Cir. 2002). Defendant Defendant points out, however, however, that that several pages 26
Decision Decision and and Order 27 v. Arthur U. San Case No. CF0446-23, People v. San Agustin Page Page 2 of 5 11 later in the very same brief, the the OAG argues that the Court should "make findings of of fact and 2 of law... conclusions of ... in in light light of ofthe the serious serious ethical ethical allegations allegations and and constitutional issues 3 4 ... before involved... before disqualifying Fulmer v. Harper, 517 disqualifying attorneys from the AG's Office. See Fulmar 4 F.2d 20 (10 Cir, Cir, 1975)." 1975)." Defendant out that on appeal in Fulmer, Defendant then points out 10 th Circuit Fulmar, the 10!1' Circuit 5
66 held that the trial trial court court should should "hold "hold a full full evidentiary evidentiary hearing on the issues posed by the
77 motion motion to disqualify and the response thereto, which hearing should include the taking of of
8 testimony." Fulmer Fulmar v. Harper, 517 F.2d 21 21 (10 Cir, 1975). 1975). Given Given the serious ethical concerns
99 raised by both parties, this Court must must agree with Defendant that there is sufficient Defendant that sufficient cause for an 10 10 evidentiary hearing. 11 11 B. Should Should The TheCourt CourtExclude Exclude Evidence Evidence Under the the Work-Products Work-Products Doctrine? Doctrine? 12 12 OAG argues The OAG argues that that the work~product work-product doctrine protects materials prepared by an 13 13 14 14 United States v. Nobles, 422 attorney acting for their client in anticipation of litigation. See United
15 15 U.S. L.Ed.2d (1975). (1975). Here, Here, the the AOG AOG claims that Defendant seeks to inquire into the team
16 16 responsible for his prosecution as they initiated this case, violating the doctrine. Defendant
17 17 argues that the work-product doctrine, even even ifif itit applies, is an evidentiary issue that can be 18 18 raised by way of objection and does not bar an evidentiary hearing or the calling of of witnesses. 19 19 It is not apparent apparent at at this this time time which which materials materials the the AOG AOG are are claiming to be privileged. The 20 Court agrees that the work-product doctrine is an evidentiary issue and should be raised by way the work-product 21 of objection. 22 C. Does Does Granting Granting an an Evidentiary Evidentiary Hearing Hearing Violate Violate Attorney-Client Attorney-Client Privilege? Privilege? 23
24 The OAG argues that the Attorney General of of Guam represents the Public Interest here
25 conception of against the potential corruption government official. Attorney General of of aa government of Guam v. v. Y'Asela 26
27 Decision Decision and and Order People v. Case No. CF0446-23, People v. Arthur U. San San Agustin Page Page 3 of 5 1 Pereira, Treasurer, Treasurer, Government Government of ofGuam, Guam, SP0032-03. SP0032-03. As As such, the OAG apparently believes 2 an evidentiary hearing will violate the privilege that the OAG has with the People (the Client). 3 4 Defendant argues Defendant argues in response that the attorney attorney client privilege with respect to to communications communications 4 between the OAG OAG and and DPHSS, DPHSS, Nadean, Nadeau, and Director Director San Augustin belongs to DPHSS, 5
66 Nadeau, and Director San Agustin- Agustin .- not not to to the the OAG. This Court agrees as as does the Guam
7 Supreme Court, which held that "privileges, such as the attorney-client privilege, are generally
8 viewed as viewed as rules of of evidence evidence that that must must be asserted within the confines confines of of aa court proceeding. See
99 th Privilege, Black's Law Dictionary (10th ed. ed. 2014) 2014) (providing (providing one one of the the definitions of definitions of 10 as . _ ,, ca . . . . . . "privilege" as "[a]n privilege as a]n evldentlary evidentiary rule rule that that gives gives aa witness witness the the option option to not disclose the fact 11 11 95 asked for, for, even even though it might might be be relevant" relevant" (emphasis (emphasis added)); added)), see see also Guam R. also Guam R. Evid. Evil. 503." 12 12 See In re A.B. A.B. Won Won Pat Pat International International Airport Authority, Guam Airport Autnorily, Guam 2019 WL 3072570. 3072570. 13 13
14 14 D. Does es GGranting rant an E Evidentiary an v ident iary HHearing earing VViolate io lat e DDeliberative Process eliberat iv Pro ces Privilege? 15 15
16 16 The OAG argues that calling OAG witnesses would violate the Deliberative Process
17 17 Privilege, which prevents the discovery of "documents reflecting advisory opinions, 18 18 . , . .. I recommendations and and deliberations dehberatlons comprising comprising pa1t part of of a process by by which governmental 19 19 and policies are formulated." See NLRB decisions and NLRB v.v. Sears, Sears, Roebuck Roebuck & Co., 421 421 U.S. 132, 132, S.Ct. S.ct. 20 1504 (1975). The privilege exists so that agency officials can speak frankly about agency 21 decisions so so as asto to protect protect the thequality quality of those decisions. decisions. Defendant Defendant points points out, out, however, however, that that in in 22 23 NLRB, NLRB, the U.S. Supreme Court Court went went 011 on totocaution cautionthat, that,"lower "lower courts courts have have uniformly uniformly drawn a 23 24 distinction between pre-decisional communications, which are privileged, and communications 24
25 made after the the decisions and and designed designed to to explain it..." Id. 1507. 1507. Defendant Defendant seeks seeks the the latter latter type
27 Decision and Decision and Order Case No. CF0446-23, People v. Arthur U. San San Agustin Agustin Page 4 of 5 Page 11 of evidence of evidence here. here. Therefore, Therefore, an an evidentiary hearing hearing will will not not violate violate the the deliberative deliberative process 2 privilege. 3 CONCLUSION AND ORDER 4
For the above reasons, the Court DENIES the People's Motion for People's Motion for Protective Order. 5
7 SO ORDERED, this . / y/ day of N~ dayof 2024. 2024. 8
10 10 1.- I
11 11 HO ORA LE JO c. C. TERLAJE TERLAJE Judge, Sup tor Co of of Guam 12 12
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27 Decision Decision and and Order People v. Case No. CF0446-23, People v. Arthur U San San Agustin Page 5 of 5 Page