Hall v. Department of Land and Natural Resources

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-APR-2022
08:11 AM
Dkt. 173 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

DANA NAONE HALL, Plaintiff-Appellant, v. DEPARTMENT OF
LAND AND NATURAL RESOURCES, BOARD OF LAND AND
NATURAL RESOURCES, SUZANNE CASE, in her official
capacity as Chairperson of the Board of Land and
Natural Resources and as the State Historic
Preservation Officer, ALAN S. DOWNER, in his
official capacity as Administrator of the State
Historic Preservation Division, DEPARTMENT OF
HEALTH, ELIZABETH A. CHAR, in her official
capacity as the Director of the Department of
Health,1 ALVIN T. ONAKA, in his official capacity
as State Registrar of Vital Statistics and Chief
of the Department of Health's Office of Health
Status Monitoring, KAWAIAHA#O CHURCH, ARTHUR AIU,
in his official capacity as the Chair of the Board
of Trustees and Chair of the Board of Directors of
Kawaiaha#o Church, Defendants-Appellees, and
HIRATA AND ASSOCIATES, INC., and CON C. TRUONG,
Real-Parties-In-Interest/Appellees, and JOHN DOES
1-10; JANE DOES 1-10; and DOE PARTNERSHIPS,
CORPORATIONS, TRUSTS, GOVERNMENTAL UNITS OR OTHER
ENTITIES 3-20, Defendants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC091001828)

1
Pursuant to Hawaii Rules of Evidence Rule 201 and Hawai #i Rules of
Appellate Procedure (HRAP) Rule 43(c)(1), we take judicial notice that
Elizabeth A. Char is the current Director of the Department of Health for the
State of Hawai#i and she is automatically substituted as a Defendant-Appellee
in place of Virginia Pressler.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, McCullen, J.,
and Circuit Court Judge Tonaki,
in place of Ginoza, Chief Judge, Hiraoka, Wadsworth,
and Nakasone, JJ., recused)

Plaintiff-Appellant Dana Naone Hall (Hall), represented

by the Native Hawaiian Legal Corporation (NHLC), appeals from the

Circuit Court of the First Circuit's (Circuit Court)2

(1) February 27, 2017 order granting a motion for protective

order and sanctioning NHLC, and (2) April 3, 2017 order granting

attorneys' fees and costs, and reasonable expenses, related to

litigating the motion for protective order [hereinafter Sanction

Orders].3 We affirm.

I. BACKGROUND

This appeal arises from long-standing litigation

related to the construction of Kawaiaha#o Church's (Church)

planned Multi-Purpose Center (MPC). Hall v. Dep't of Land & Nat.

Res., 128 Hawai#i 455, 458–63, 290 P.3d 525, 528–33 (App. 2012).

Due to the voluminous record, we reiterate only the background

pertinent to resolving this appeal.

2
The Honorable Karen T. Nakasone presided.
3
The title of the February 27, 2017 order was "Order Granting
Defendants Kawaiaha#o Church and Arthur Aiu, in his official capacity as the
Chair of the Board of Trustees and Chair of the Board of Directors of
Kawaiaha#o Church's Motion for Protective Order and/or Motion to Quash
Subpoenas[.]" (Some formatting altered.)
The title of the April 3, 2017 order was "Order Granting Defendants
Kawaiaha#o Church and Arthur Aiu, in his official capacity as the Chair of the
Board of Trustees and Chair of the Board of Directors of Kawaiaha #o Church's
Attorneys' Fees and Costs and Hirata & Associates, Inc., and Con C. Truong's
Reasonable Expenses Re: Defendants Kawaiaha #o Church and Arthur Aiu, in his
official capacity as the Chair of the Board of Trustees and Chair of the Board
of Directors of Kawaiaha#o Church's Motion for Protective Order and/or Motion
to Quash Supboenas." (Some formatting altered.)
In Hall's reply to Kawaiaha#o Church's answering brief, she states that
"the scope of this appeal is, and always has been, limited to seeking the
reversal of the Circuit Court's erroneous decision to sanction Hall's
attorneys."

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A. The Hall Case - Motion To Amend

In October 2011, Hall moved to amend her Second Amended

Complaint to add two substantive claims - violation of Hawaii

Revised Statutes (HRS) chapter 441 and violation of the

disinterment permit. Regarding the first proposed amendment,

violation of HRS chapter 441, Hall asserted that "if the area

where the [MPC] is proposed to be built is a cemetery, then it

must be used exclusively for cemetery purposes until the

dedication is removed pursuant to HRS chapter 441 including HRS

§ 441-15." Regarding the second proposed amendment, violation of

the disinterment permit, Hall asserted the "Church has not

(a) consulted with any known descendents [sic] regarded [sic]

ongoing trenching and infrastructure work[,] (b) provided full

disclosure of all burial remains disinterred and regular updates

at OIBC meetings[,] and/or (c) relied exclussively [sic] on hand

excavation since obtaining the permit." On November 8, 2011, the

Honorable Karl K. Sakamoto (Judge Sakamoto) denied Hall's motion

as untimely with the discovery deadline approaching.
B. The Kaleikini Case - Complaint Filed

Eight days later, on November 16, 2011, NHLC filed a

second lawsuit in the circuit court against Church, this time on

behalf of Paulette Ka#anohiokalani Kaleikini (Kaleikini).4 Like

the motion to amend in Hall, Kaleikini claimed a violation of HRS

chapter 441 and a violation of the disinterment permit.

Kaleikini asserted that "[b]ecause HRS Chapter 441

requires that cemeteries be used exclusively for cemetery

4
Paulette Ka#anohiokalani Kaleikini v. Kawaiaha#o Church, et al., Civil
No. 11-1-2816-11.

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purposes until dedication is removed, construction of the [MPC]

on top of graves or burials is inconsistent with HRS

Chapter 441." Kaleikini also asserted that "[b]uilding the [MPC]

on top of graves or burials violates the conditions of the

Department of Health's October 22, 2010 blanket disinterment

permit and desecrates graves." This case was assigned to the

Honorable Edwin C. Nacino (Judge Nacino).

C. Stays In Hall And Kaleikini

In Hall, on April 12, 2016, Judge Sakamoto met with

counsel in chambers, and according to the court minutes,5 Judge

Sakamoto stated, "pretrial conference is taken off. Matters are

stayed pending the outcome of [Archaeological Inventory Study

(AIS)] & Review Process." (Formatting altered.) Judge Sakamoto

then issued a minute order stating, "court sua sponte vacates

trial week of 5/23/16 to allow completion of AIS and Review

Process[.]" (Formatting altered.)

In Kaleikini, on October 25, 2016, Judge Nacino

purportedly held a status conference as indicated by a Status

Conference Statement letter sent to Judge Nacino on behalf of the
Church where Church presented a letter from its consultant,

Con C. Truong (Truong), and raised the construction mitigation

issues to protect the excavated portion of the construction site

from further erosion and degradation. On November 16, 2016,

Judge Nacino ordered a stay of proceedings and requested both

parties meet and confer about the mitigation measures instead of

5
The record on appeal consists of the trial court record as set out
in Rule 4 of the Hawai#i Court Record Rules (HCRR). HRAP Rule 10. HCRR
Rule 4 provides that court minutes are part of the record of each case. HCRR
Rule 4(f).

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litigating the issue. Judge Nacino stated in particular, "[n]o

activity whatsoever, other than the settlement conference" and

"[t]here's no discovery needed, and there's no motions needed,

that's not going to be allowed, . . . at this point until

settlement conference is had . . . ." Judge Nacino, however,

also stated that the parties could file a motion to lift the stay

if needed.
D. Hall Subpoenas Kaleikini Consultants

On December 1, 2016, Hall issued subpoenas commanding
Church's Kaleikini mitigation consultants, Truong and Greg Kodama

(Kodama), to appear for depositions on December 16, 2016 at

9:00 a.m. and 1:30 p.m. respectively at NHLC's office. When Hall

(represented by NHLC) issued these subpoenas, Kaleikini (also

represented by NHLC) and Church were negotiating a meet and

confer regarding the erosion mitigation issues as ordered by

Judge Nacino.

One week later on December 8, 2016, according to the

court minutes, Judge Sakamoto held a status conference and lifted

the April 12, 2016 stay noting that the "stay was not meant to be
[a] permanent stay of the litigation and any such stay is hereby

lifted."

E. Church's Motion For Protective Order In Hall

Church filed a Motion for Protective Order with regards

to the subpoenas of Truong and Kodama in Hall. Truong and the

State of Hawai#i, Department of Land and Natural Resources (DLNR)

joined Church's motion. The Circuit Court in Hall, the Honorable

Karen T. Nakasone presiding in place of Judge Sakamoto, granted

the motion because the "subpoenas and deposition notices were

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improperly issued in this case, for two third-party declarants

[Trong and Kodama] who submitted declarations in the [Kaleikini]"

case.

The Circuit Court found that these "subpoenaed third-

parties [were] not witnesses in this case, nor have they

submitted any declaration to this court. Therefore, this

discovery is appropriately pursued in the Kaleikini case, and it

was improper to attempt to depose the Kaleikini third-party

declarants in this Hall case."
The Circuit Court also found that the "erosion

mitigation issue was specifically discussed with Judge Nacino in

Kaleikini, at a hearing on November 16, 2016," and "[a]t that

hearing, Judge Nacino issued a stay, prohibiting any discovery

and motions, until a settlement conference could be conducted

with another judge." The Circuit Court found that "during the

stay period when the Kaleikini parties were attempting to confer

regarding the erosion mitigation proposal, as instructed by Judge

Nacino, and during this same period while Judge Sakamoto's

litigation stay in Hall was still in effect, Plaintiff Hall's
counsel unilaterally noticed the depositions at issue" and that

"conduct violated the stay orders in both Kaleikini and this Hall

case.

The Circuit Court further stated that NHLC failed to

conduct themselves in accordance with the Professional Courtesy

and Civility Guidelines when "neither [Truong] nor [Kodama], nor

the other parties in Hall, were [given prior notice] of the fact

that Plaintiff intended to depose these Kaleikini declarants."

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Finally, the Circuit Court found that the attempted

depositions were premature because no motion on the erosion

mitigation had yet been filed in either case. "Unless and until

a motion is filed putting the issue of erosion mitigation before

this Court, any discovery on that issue is premature."

The Circuit Court ruled, the "subpoenas are quashed,

and the depositions are prohibited on grounds that they are

premature, and filed in the wrong forum." The Circuit Court then

imposed sanctions pursuant to Hawai#i Rules of Civil Procedures
(HRCP) Rule 37(a)(4)(A), ordering NHLC to pay "reasonable

expenses for this motion, and the two joinders, incurred by

movant Defendant Church and DLNR Defendant, and non-parties

Hirata & Associates, Inc., and [Trong]." This appeal followed.
II. DISCUSSION

On appeal, Hall challenges the Circuit Court's

discovery sanctions contending that she "was substantially

justified in attempting to depose Truong and Kodama" and "the

imposition of sanctions is unjust and in contravention of the

public interest."6 The record, however, does not support Hall's
contentions.

Once a court issues a protective order, it must order

reasonable expenses to the movant unless the opposing party was

substantially justified or the award of expenses was unjust:

6
In her points of error, Hall challenges paragraphs 1, 2, and 5-11 of
the Protective Order. Rather than addressing the paragraphs individually in
the argument section of her brief, Hall incorporates the Circuit Court's
findings and conclusions as relevant to her arguments that she was
substantially justified and the sanctions were unjust. We address Hall's
challenges to paragraphs 1, 2, and 5-11 in a likewise manner.

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If the motion is granted or if the disclosure or requested
discovery is provided after the motion was filed, the court
shall, after affording an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion
or the party or attorney advising such conduct or both of
them to pay to the moving party the reasonable expenses
incurred in making the motion, including attorney's fees,
unless the court finds that the motion was filed without the
movant's first making a good faith effort to obtain the
disclosure or discovery without court action, or that the
opposing party's nondisclosure, response, or objection was
substantially justified, or that other circumstances make an
award of expenses unjust.

HRCP Rule 37(a)(4)(A) (emphases added); HRCP Rule 26(c)

(regarding protective orders, "[t]he provisions of Rule 37(a)(4)

apply to the award of expenses incurred in relation to the

motion"). Additionally, the trial court is given broad

discretion in imposing discovery sanctions, and its decision is

reviewed for an abuse of discretion. See Wong v. City & Cnty. of

Honolulu, 66 Haw. 389, 394, 665 P.2d 157, 161 (1983).
A. Hall's Violation Of The Stay Orders Was Not Substantially
Justified

Hall contends that she was substantially justified in

subpoenaing Truong and Kodama because (1) their depositions were

relevant, (2) she "believed that the Court did not intend to stay

discovery" and Judge Sakamoto "allowed the depositions to

proceed," (3) she "complied with the Courtesy and Civility
Guidelines,"7 and (4) she was not forum shopping.
1. Relevance

To support her contention that she was substantially

justified in issuing the subpoenas, Hall argues that the

depositions were directly relevant to her claims to protect

burials within the construction site of Church's planned MPC.

7
Hall also contends that she complied with HRCP Rule 30. However, the
Circuit Court did not find a violation of HRCP Rule 30, and HRCP Rule 30 does
not provide justification for violating a court order staying proceedings.

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She claims that under the broad umbrella of relevancy as provided

in HRCP Rule 26, she attempted to obtain "evidence immediately

relevant to the condition of the burial site and imminent

construction plans by the Church."

"A general limitation on the right of discovery is that

the information sought must be 'relevant to the subject matter

involved in the pending action.'" Lothspeich v. Sam Fong, 6 Haw.

App. 118, 122, 711 P.2d 1310, 1314 (1985).
Relevancy, within the area of discovery, has a broader
meaning than in the field of evidence. Information can be
discoverable as relevant if it is admissible at trial or is
reasonably calculated to lead to the discovery of admissible
evidence. Such information may be obtained by deposition;
however, depositions are properly taken only for the purpose
of preparing for trial or obtaining evidence for use in a
pending action.

Id. (citations omitted). HRCP Rule 26(b)(1) provides that

"[p]arties may obtain discovery regarding any matter, not

privileged, which is relevant to the subject matter involved in

the pending action . . . ." HRCP Rule 26(b)(1).

Both Truong and Kodama were consulting Church on

mitigation measures and, under the broad definition of relevancy,

could have information that was relevant to Hall's case to the

extent it impacted the preservation of the burial site under
Count 6, and whether injunctive relief was necessary. However,

Hall issued the subpoenas while a stay was in place in her case,

as well as in Kaleikini.

In Hall, the April 12, 2016 court minutes state, "Court

will stay the matter until the completion of an AIS and the

review process successfully" and "matters are stayed pending the

outcome of AIS & Review Process." In Kaleikini, Judge Nacino

stayed all proceedings on November 16, 2016, and also stated

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"[t]here's no discovery needed, and there's no motions needed,

that's not going to be allowed . . . at this point until

settlement conferences is had . . . ."

Notwithstanding these court orders, on December 1,

2016, Hall issued subpoenas to Truong and Kodama, commanding them

to appear to testify on December 16, 2016 at 9:00 a.m. and

1:30 p.m. respectively at NHLC's office. Any relevance of

Truong's and Kodama's testimonies, however, do not amount to

substantial justification for violating the stay orders in both
cases. The proper course of action was to file motions to lift

the stay orders.
2. Belief Discovery Was Permitted

Hall also argues that she "believed that the Court did

not intend to stay discovery, though the terms of the stay were

not expressly set forth in any order of the Court," and Judge

Sakamoto "allowed the depositions to proceed over the same

objections" that the Circuit Court "found to be persuasive."

Hall asserts that NHLC "should not be sanctioned for proceeding

with discovery by a new presiding judge which the prior judge
allowed to proceed."

Contrary to Hall's arguments and as previously

discussed, the record supports the findings and conclusions that

a stay in both Hall and Kaleikini existed at the time Hall issued

subpoenas to Truong and Kodama. The court minutes show that

Judge Sakamoto imposed a stay in Hall on April 12, 2016. And it

was not until seven days after Hall issued the subpoenas, did

Judge Sakamoto lift the stay. A reasonable inference from the

stay being lifted on December 8, 2016, is that the stay was

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indeed in effect when Hall issued the subpoenas on December 1,

2016.

Although the court minutes reflect that Judge Sakamoto

did not intend the stay to be permanent, there was no explicit

language indicating that discovery was allowed while the stay was

in place and there was no express ruling regarding the

December 1, 2016 subpoenas. In sum, the record does not support

Hall's contention that Judge Sakamoto allowed the depositions to

proceed, and there are no transcripts or filed orders regarding
Judge Sakamoto lifting the stay for this Court to review.
3. Civility Guidelines

Hall claims she "complied with the Courtesy and

Civility Guidelines" in noticing the depositions of Truong and

Kodama. Hall, however, fails to point to where in the record she

consulted opposing counsel or the third-party witnesses prior to

issuing the December 1, 2016 subpoenas.

"The Guidelines are not mandatory rules of professional

conduct, nor standards of care[,]" but are "offered for guidance

of lawyers and for the information of their clients, as well as
for reference by the courts." Guidelines of Professional

Courtesy and Civility for Hawai#i Lawyers (Guidelines) Preamble.

Section 1(a) of the Guidelines provides that "a lawyer who

manifests professional courtesy and civility . . . [m]akes

reasonable efforts to schedule meetings, hearings, and discovery

by agreement whenever possible and considers the scheduling

interests of opposing counsel, the parties, witnesses, and the

court." See Guidelines Section 1(a). Section 7(a)(2) of the

Guidelines provides that "a lawyer who manifests professional

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courtesy and civility . . . [a]ccommodates the schedules of

opposing counsel and the deponent in scheduling depositions,

where it is possible to do so without prejudicing the client's

rights." See id. Section 7(a)(2).

Here, Hall issued subpoenas on December 1, 2016 to both

Truong and Kodama, commanding them to appear to testify on

December 16, 2016 at 9:00 a.m. and 1:30 p.m. respectively at

NHLC's office. Hall only attempted to make reasonable efforts in

scheduling the depositions after there were objections to the
December 1, 2016 subpoenas.

Nonetheless, the Circuit Court noted in its order that

"[w]hile the civility guidelines are not rules per se, it is a

professional code that all lawyers are expected to follow." The

Circuit Court then ruled, "To avoid any issues in the future,

these guidelines will now be made mandatory in this case, and any

violation thereof, may be sanctioned by this Court."

Thus, the Circuit Court's reference to the Guidelines

appears to have been for the purpose of avoiding future disputes,

and not as a basis for the sanctions.
4. Forum Shopping

Claiming she did not forum shop, Hall argues that the

"Circuit Court was clearly erroneous in determining that 'it was

improper to attempt to depose the Kaleikini third party

declarants in the Hall case.'" Hall further argues that

"[r]egardless of where [her] counsel found out that the MPC

project site was eroding and that the Church desired to engage in

remedial construction activities, her counsel had a duty to

inform her of the change in circumstances and advise her to

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proceed diligently." Without citing to legal authority, Hall

asserts that she "did not need to wait for the Church to file a

motion in this case to conduct discovery."

Again, stay orders were in place in both Hall and

Kaleikini on December 1, 2016, the date Hall issued subpoenas

commanding Truong and Kodama to appear for depositions. Forum

shopping aside, issuing subpoenas while the stays were in place

was a violation of court orders.

In sum, the record does not support Hall's contention
that there was substantial justification for issuing subpoenas

while stays of the proceedings were in effect. Thus, based on

the record in this case, the Circuit Court did not abuse its

discretion by sanctioning NHLC.
B. The Sanctions Were Not Unjust

Hall argues that the imposition of sanctions was

unjust, asserting that "[c]ourts have denied an award of costs

where the imposition of costs would chill future public interest

litigation or where the issues are complex." Hall, however,

fails to demonstrate that the sanctions were disproportionate to
the conduct. And contrary to Hall's argument, there was no

chilling effect on public interest litigation.

Here, Hall violated a court order, and NHLC was

sanctioned. Of note, the Circuit Court reduced Church's

requested attorneys' fees and costs from $21,439.33 to $5,347.02,

and awarded Truong $732.98 for reasonable expenses. These

sanctions were related to litigation surrounding the December 1,

2016 subpoenas, and we cannot conclude that these sanctions were

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an abuse of discretion. See Wong, 66 Haw. at 394, 665 P.2d at

161 (applying the abuse of discretion standard to sanctions).
III. CONCLUSION

For the foregoing reasons, we affirm the Circuit Court

of the First Circuit's February 27, 2017 order granting Church's

motion for protective order and April 3, 2017 order granting

Church's attorneys' fees and costs and Truong's reasonable

expenses.

DATED: Honolulu, Hawai#i, April 29, 2022.
On the briefs: /s/ Katherine G. Leonard
Associate Judge
David Kauila Kopper,
Camille K. Kalama, and /s/ Sonja M.P. McCullen
Isaac D. Hall, Associate Judge
for Plaintiff-Appellant.
/s/ John M. Tonaki
Marie Manuele Gavigan, Circuit Court Judge
Deputy Attorney General,
for Defendants-Appellees
DEPARTMENT OF LAND AND NATURAL
RESOURCES, BOARD OF LAND AND
NATURAL RESOURCES, SUZANNE CASE
and ALAN S. DOWNER, in their
respective official capacities,
DEPARTMENT OF HEALTH,
ELIZABETH A. CHAR and ALVIN
ONAKA in their respective
official capacities.
Arthur F. Roeca,
Lois H. Yamaguchi, and
Jodie D. Roeca,
(Roeca Luria Shin),
for Defendants-Appellees
KAWAIAHA#O CHURCH and ARTHUR AIU,
in his official capacity as the
Chair of the Board of Trustees
and Chair of the Board of
Directors of Kawaiaha#o Church.

Ann H. Aratani
(Chong, Nishimoto, Sia, Nakamura
& Goya),
for Real-Parties-In-Interest-
Appellees HIRATA & ASSOCIATES,
INC., and CON C. TRUONG.

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