Spirit of Aloha Temple et al v. County of Maui et al

Filing 125

ORDER REGARDING DEFENDANT COUNTY OF MAUI'S SUBMISSION OF DOCUMENTS UNDER SEAL FOR REVIEW AND MOTION FOR DETERMINATION OF PRIVILEGE PURSUANT TO FED. R. CIV. P. RULE 26(b)(5)(B) re: 121 . Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 5/8/2017. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SPIRIT OF ALOHA TEMPLE, ET
AL.,
Plaintiffs,
vs.
COUNTY OF MAUI,
Defendant.

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CIVIL NO. 14-00535 SOM-RLP
ORDER REGARDING DEFENDANT COUNTY
OF MAUI’S SUBMISSION OF
DOCUMENTS UNDER SEAL FOR REVIEW
AND MOTION FOR DETERMINATION OF
PRIVILEGE PURSUANT TO FED. R.
CIV. P. RULE 26(b)(5)(B)

ORDER REGARDING DEFENDANT COUNTY OF MAUI’S SUBMISSION OF
DOCUMENTS UNDER SEAL FOR REVIEW AND MOTION FOR DETERMINATION
OF PRIVILEGE PURSUANT TO FED. R. CIV. P. RULE 26(b)(5)(B)
Before the Court is Defendant County of Maui’s
Submission of Documents Under Seal for Review and Motion for
Determination of Privilege Pursuant to Fed. R. Civ. P. Rule
26(b)(5)(B), filed April 7, 2017 (“Motion”).

ECF No. 121.

Plaintiffs filed their Opposition to the Motion on April 21,
2017.

ECF No. 123.

May 5, 2017.

Defendant County of Maui filed its Reply on

ECF No. 124.

Pursuant to Local Rule 7.2(d), the

Court found this Motion suitable for disposition without a
hearing.

ECF No. 122.

After carefully reviewing the parties’

submissions and the relevant legal authority, the Court ORDERS as
follows.
BACKGROUND
Plaintiffs Spirit of Aloha Temple and Fredrick R. Honig
applied for a State Land Use Commission Special Permit to build a
church and hold religious events on a parcel of land located in

the County of Maui.

After the application was denied, Plaintiffs

filed their Complaint in this court asserting claims for
violations of the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 1983, and the Hawaii
constitution against both the Maui Planning Commission and the
County of Maui.

See ECF No. 1.

Fredrick R. Honig is a licensed minister and teacher of
“Integral Yoga.”

Id. ¶ 21.

Spirit of Aloha Temple is a

501(c)(3) tax-exempt organization that was incorporated as a
church in 2007 to promote Integral Yoga, and leases an
eleven-acre parcel located in Haiku, Maui, which is zoned
“Agriculture” and is in a Special Management Area.
36-40, 43-44.

Id. ¶¶ 26,

The property is being used for limited “secular”

purposes, including a botanical garden, bird sanctuary, and staff
housing.

Id. ¶ 45.
Plaintiffs first applied for a special use permit to

use the property as a church, which was denied in 2010 by the
Maui Planning Commission on various grounds.

Id. ¶ 52.

In 2012,

Plaintiffs filed another application for a special permit to use
the property for the same religious purposes, including
educational programs and wedding ceremonies.

Id. ¶ 85.

The

Maui Planning Department issued a report and recommendation that
the permit be issued.

Id. ¶ 94.

However, after a public hearing

in which several residents in the surrounding area expressed
concern about road safety given increased traffic to and from the
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property, various zoning violations by Plaintiffs, and the impact
of increased numbers of visitors on community resources, the Maui
Planning Commission voted to deny the application.

Id. ¶ 132.

The Maui Planning Commission set forth its findings and
conclusions in its Decision and Order of October 30, 2014
(“October 2014 Decision”).

Id.

On January 27, 2016, the district court declined to
exercise supplemental jurisdiction over one of Plaintiff’s state
law claims, dismissed all other claims against the Maui Planning
Commission, and stayed all other claims against Defendant County
of Maui pending the resolution of Plaintiff’s administrative
appeal of the October 2014 Decision.

See ECF No. 109.

February 13, 2017, the stay was lifted.

ECF No. 114.

On
The

present Motion followed.
In the present Motion, Defendant asks the Court to
determine whether certain documents produced by Plaintiffs’
expert are protected by the work product doctrine as asserted by
Plaintiffs.

See ECF No. 121.
DISCUSSION

The work product doctrine is set forth in Rule 26(b)(3)
of the Federal Rules of Civil Procedure, which protects from
discovery documents that are prepared in anticipation of
litigation or for trial by or for another party or its
representative.

See Fed. R. Civ. P. 26(b)(3); United States v.

Richey, 632 F.3d 559, 567 (9th Cir. 2011).
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Here, the materials at issue are email communications
produced to Defendant by Plaintiffs’ retained expert, Alan
Bradbury.

Rule 26(b)(4)(C) specifically addresses expert

material and states that “regardless of the form,” communications
between a party’s attorney and any retained expert are protected
from disclosure in discovery, subject to certain exceptions.

See

Fed. R. Civ. P. 26(b)(4)(C).
First, the following communications between Plaintiffs’
counsel and Mr. Bradbury or his assistant are protected from
discovery by the work product doctrine set forth in Rule
26(b)(4)(C):
(1) email dated 1/8/2016 from Summer Bradbury to Roman
Storzer forwarding an email from Maui Nui Botanical Gardens (page
16 of Ex. A);
(2) email dated 1/4/2016 from Roman Storzer to Summer
Bradbury and Alan Bradbury (page 18 of Ex. A);
(3) email dated 10/29/2015 from Summer Bradbury to
Roman Storzer (page 18 of Ex. A)
(4) email dated 1/8/2016 from Summer Bradbury to Alan
Bradbury forwarding an email from Roman Storzer (page 19 of Ex.
A);
(5) email dated 1/13/2016 from Adam Lang to Summer
Bradbury and Roman Storzer (page 20 of Ex. A);
(6) email dated 1/13/2016 Roman Storzer to Summer
Bradbury (page 21 of Ex. A);
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(7) email dated 1/11/2016 from Summer Bradbury to Roman
Storzer (page 21 of Ex. A);
(8) email dated 10/28/2015 from Roman Storzer to Summer
Bradbury (page 21 of Ex. A);
(9) email dated 10/28/2015 from Roman Storzer to Summer
Bradbury (page 22 of Ex. A);
(10) email dated 10/28/2015 from Summer Bradbury to
Roman Storzer, which includes two prior emails dated 10/27/2015
between Summer Bradbury and Roman Storzer (page 22 of Ex. A);
(11) email dated 10/19/2015 from Roman Storzer to
Summer Bradbury (page 23 of Ex. A);
(12) email dated 10/6/2015 from Alan Bradbury to Roman
Storzer (page 24 of Ex. A);
(13) email dated 1/13/2016 from Alan Bradbury to Adam
Lang (page 26 of Ex. A); and
(14) email dated 1/13/2016 from Adam Lang to Alan
Bradbury (page 26 of Ex. A).
These communications fit squarely within the scope of
material protected from disclosure under subsection (C).
Fed. R. Civ. P. 26(b)(4)(C).

See

These emails reflect communications

between Plaintiffs’ counsel and Mr. Bradbury or his assistant and
do not fall within any of the exceptions outlined in the Rule.
See id.

The Court rejects Defendant’s argument that these email

communications should not be protected because they “jeopardize
the experts’ independence.”

See ECF No. 121-1 (quoting Gerke v.
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Travelers Cas. Ins. Co. of Am., 289 F.R.D. 316, 326 (D. Or.
2013)); ECF No. 124 at 1-3.

The Court has carefully reviewed the

materials submitted in camera and finds no evidence that
Plaintiffs’ counsel “commandeered” Mr. Bradbury’s report or that
Plaintiffs’ counsel was using Mr. Bradbury as a “conduit” for
their own theories.

See Gerke, 289 F.R.D. at 328.

Second, the undated letter from Roman Storzer to Alan
Bradbury, pages 27-28 of Ex. A, is not protected from discovery.
Although it is a communication between counsel and an expert, the
letter identifies assumptions that Plaintiffs’ counsel provided
to Mr. Bradbury and that Mr. Bradbury relied on in forming his
opinion.

See Fed. R. Civ. P. 26(b)(4)(C)(iii) (allowing

discovery of communications that identify assumptions provided by
counsel and relied upon by the expert).

Specifically, the letter

sets forth three issues to be addressed in Mr. Bradbury’s report.
The statement of these issues includes certain assumptions
regarding activities within a botanical garden that are later
reflected in Mr. Bradbury’s report.

See ECF No. 123-1.

Accordingly, this letter is not protected by the work product
doctrine and is discoverable.
Third, several email communications at issue were not
between Plaintiffs’ counsel and Mr. Bradbury or his assistant and
are therefore not protected expert communications with counsel
under Rule 26(b)(4)(C).

Instead, these emails are between Mr.

Bradbury and his assistant.

Because these emails do not include
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communications with Plaintiffs’ counsel, they are not protected
from discovery under the work product doctrine contained in Rule
26(b)(4)(C).

Although not entirely clear, it does not appear

that Plaintiffs are asserting that these emails are protected
from discovery on any other basis.

See ECF No. 123 at 20 n.5

(quoting extensively from the emails at issue).

Accordingly, the

following email communications are discoverable:
(1) email dated 1/5/2017 from Summer Bradbury to Alan
Bradbury (page 18 of Ex. A);
(2) email dated 1/5/2016 from Alan Bradbury to Summer
Bradbury (page 18 of Ex. A);
(3) email dated 10/6/2015 from Alan Bradbury to Summer
Bradbury (page 24 of Ex. A);
(4) email dated 10/20/2015 at 2:31 p.m. from Summer
Bradbury to Alan Bradbury (page 25 of Ex. A);
(5) email dated 10/20/2015 from Alan Bradbury to Summer
Bradbury (page 25 of Ex. A);
(6) email dated 10/20/2015 at 2:57 p.m. from Summer
Bradbury to Alan Bradbury (page 25 of Ex. A);
(7) email dated 10/20/2015 from Alan Bradbury to Summer
Bradbury (page 26 of Ex. A); and
(8) email dated 10/20/2015 from Summer Bradbury to Alan
Bradbury (page 26 of Ex. A).
Finally, Defendant also takes issue with the fact that
Plaintiffs have not produced a privilege log.
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See ECF No. 121-1

at 2, 9, 14.

Rule 26(b)(5)(A) requires that if a party withholds

documents on the basis of work product protection, that party
must produce a privilege log.

See Fed. R. Civ. P. 26(b)(5)(A).

Here, the documents were produced by Plaintiffs’ expert and not
by Plaintiffs.

Plaintiffs did not withhold any documents that

would trigger the requirements of Rule 26(b)(5)(A).

Instead,

pursuant to Rule 26(b)(5)(B), Plaintiffs sent Defendant a letter
dated March 31, 2017, detailing the pages that Plaintiffs
specifically asserted the work product doctrine protected from
discovery and demanding that Defendant return or destroy the
documents at issue.

See ECF No. 121-8; Fed. R. Civ. P.

26(b)(5)(B) (providing that if information is produced that is
subject to a claim of protection, the party making the claim
shall notify the receiving party, who must then “promptly return,
sequester, or destroy” the information and may “promptly present
the information to the court under seal for a determination of
the claim”).

Plaintiffs have appropriately complied with the

requirements of Rule 26(b)(5)(B) and no privilege log is
required.

Additionally, in light of the stay of this action that

was in place from January 27, 2016, until February 13, 2017, the
Court also finds that Plaintiffs’ assertion of the work product
doctrine was timely.

See ECF Nos. 109, 114.
CONCLUSION

In accordance with the foregoing, the Court ORDERS as
follows:
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(1)

No later than May 19, 2017, Defendant shall file a

certification with the Court stating that it has destroyed all
copies in its possession of pages 16, 19, 20, 21, 22, 23 of
Exhibit A to its Motion.
(2)

No later than May 19, 2017, Defendant shall file a

certification with the Court stating that it has redacted the
following emails on pages 18, 24, and 26 from all copies in its
possession of Exhibit A to its Motion:

email dated 1/4/2016 from

Roman Storzer to Summer Bradbury and Alan Bradbury (page 18 of
Ex. A); email dated 10/29/2015 from Summer Bradbury to Roman
Storzer (page 18 of Ex. A); email dated 10/6/2015 from Alan
Bradbury to Roman Storzer (page 24 of Ex. A); email dated
1/13/2016 from Alan Bradbury to Adam Lang (page 26 of Ex. A); and
email dated 1/13/2016 from Adam Lang to Alan Bradbury (page 26 of
Ex. A).
(3)

The following communications are not protected

from discovery by the work product doctrine and are properly
retained by Defendant:

the undated letter from Roman Storzer to

Alan Bradbury (pages 27-28 of Ex. A); email dated 1/5/2017 from
Summer Bradbury to Alan Bradbury (page 18 of Ex. A); email dated
1/5/2016 from Alan Bradbury to Summer Bradbury (page 18 of Ex.
A); email dated 10/6/2015 from Alan Bradbury to Summer Bradbury
(page 24 of Ex. A); email dated 10/20/2015 at 2:31 p.m. from
Summer Bradbury to Alan Bradbury (page 25 of Ex. A); email dated
10/20/2015 from Alan Bradbury to Summer Bradbury (page 25 of Ex.
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A); email dated 10/20/2015 at 2:57 p.m. from Summer Bradbury to
Alan Bradbury (page 25 of Ex. A); email dated 10/20/2015 from
Alan Bradbury to Summer Bradbury (page 26 of Ex. A); and email
dated 10/20/2015 from Summer Bradbury to Alan Bradbury (page 26
of Ex. A).
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, MAY 8, 2017.

_____________________________
Richard L. Puglisi
United States Magistrate Judge

SPIRIT OF ALOHA TEMPLE, ET AL. vs. COUNTY OF MAUI; CIVIL NO. 14-00535
SOM-RLP; ORDER REGARDING DEFENDANT COUNTY OF MAUI’S SUBMISSION OF
DOCUMENTS UNDER SEAL FOR REVIEW AND MOTION FOR DETERMINATION OF
PRIVILEGE PURSUANT TO FED. R. CIV. P. RULE 26(b)(5)(B)

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