Trustees of the Estate of Bernice Pauahi Bishop v. Trader

• Court: Hawaii Supreme Court
• Decided: January 5, 2015
• Docket: SCPW-14-0000904
• Status: Published

Opinion

Electronically Filed Supreme Court SCPW-14-0000904 05-JAN-2015 11:49 AM

SCPW-14-0000904

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

TRUSTEES OF THE ESTATE OF BERNICE PAUAHI BISHOP

dba KAMEHAMEHA SCHOOLS, Petitioners,

vs.

ROM A. TRADER, JUDGE OF THE CIRCUIT COURT

OF THE FIRST CIRCUIT, Respondent Judge,

and

STATE OF HAWAI'I and GABRIEL ALISNA, Respondents.

ORIGINAL PROCEEDING

(CR. NO. 13-1-1861)

ORDER

(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

Upon consideration of Petitioners’ petition for a writ of mandamus, filed on June 25, 2014 (“Petition”), the answers

filed by Respondents State of Hawai'i and Gabriel Alisna

(“Alisna”), the supplemental memorandum and reply filed by Petitioners, the respective supporting documents, and the record, it is unclear whether the circuit court applied the three-part

test set forth in State v. Peseti, 101 Hawai'i 172, 182, 65 P.3d

119, 129 (2003), to address the issues related to the June 17, 2014 “Decision and Order Regarding In-Camera Inspection of

Documents Produced by Third-Party Kamehameha Schools Relating to

Hearing Held May 27, 2014.” Peseti requires Alisna to show the

following: “(1) there is a legitimate need to disclose the

protected information[1] ; (2) the information is relevant and material to the issue before the court; and (3) the party seeking to pierce the privilege shows by a preponderance of the evidence that no less intrusive source for that information exists.” 101 Hawai'i at 182, 65 P.3d at 129 (quotation marks and citation omitted) (footnote added). Accordingly,

IT IS HEREBY ORDERED that the Respondent Judge shall

apply the three-part test set forth in Peseti to determine if

disclosure of the privileged documents is warranted, subject to

any applicable waiver of the privilege. In determining whether

there is a legitimate need by the defense for the information at

issue, the Respondent Judge should consider in camera review of

discovery disclosed by the government to Alisna and any

applicable investigative reports prepared by Alisna. In

determining whether there is no less intrusive source for the

information, the Respondent Judge should consider whether the

substance of the privileged information may become available to

the defense through other discovery methods. If the Respondent

Judge concludes that disclosure of the privileged documents is

warranted, then the Respondent Judge is directed to consider the

1 This would involve consideration of Alisna’s constitutional rights

as well as the particular policy interests served by the attorney-client

privilege.

imposition of appropriate protective measures, including, but not

limited to, the redaction of any mental impressions and work

product of Petitioners’ attorneys.

In all other respects, the petition for a writ of

mandamus is denied. See Kema v. Gaddis, 91 Hawai'i 200, 204-05,

982 P.2d 334, 338-39 (1999) (where a court has discretion to act, a writ of mandamus will not issue, even if the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court where he or she has a legal duty to act). DATED: Honolulu, Hawai'i, January 5, 2015. /s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson