Trustees of the Estate of Bernice Pauahi Bishop v. Trader ( 2015 )

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.
2
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
3