YHT, INC., Plaintiff,
OXFORD/PROGRESSIVE GROUP, doing
business as PROGRESSIVE INSURANCE COMPANY (PAGO PAGO), LTD.; PROGRESSIVE
INSURANCE COMPANY (APIA), LTD.; OXFORD PACIFIC INSURANCE COMPANY; INSURANCE
COMPANY OF THE PACIFIC; THE BOSTON GROUP;
and DOES 1-5, Defendants.
High Court of American Samoa
CA No. 92-00
 Pre-trial orders governing discovery, not falling
within finality exception or collateral order exception, may only be challenged
on appeal from final decision. Motion to reconsider order denying motion to
compel discovery was denied.
 T.C.R.C.P. 26(f) authorizes court
to call discovery conference.
 Although not adopting the federal
rule mandating discovery conferences, Court found rule’s subjects of discussion
to be addressed extremely practical as guidelines for what is anticipated at
discovery conference and required that both parties’ counsel file the following
before discovery conference: (a) list of subjects to be addressed by discovery;
(b) proposed plan and schedule of discovery; (c) proposed limitations to be
placed on discovery in addition to those already adjudicated; and (d) any other
proposed orders with respect to discovery.
 All parties
and their attorneys are under duty to participate in good faith in framing
 After discovery conference, court
order will identify issues; establish plan and schedule for discovery; set
limitations, if any; and determine other matters for proper management of
Before RICHMOND, Associate Justice, ATIULAGI, Associate Judge
and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, Paul F. Miller
For Defendants, William H. Reardon
ORDER ON MOTION FOR
RECONSIDERATION OF ORDER DENYING MOTION TO COMPEL DISCOVERY, AND
REQUIRING A DISCOVERY
Plaintiff YHT, Inc. (“YHT”),
submitted a Motion to Compel Discovery on October 17, 2000, which was denied by
this Court on February 21, 2001. On February 26, 2001, YHT then moved the Court
to reconsider our denial of its motion to compel discovery, which motion was
heard on April 23, 2001. We summarily deny YHT’s motion, and order a discovery
conference to contain the spiraling problems regarding discovery in this case.
 In a
recent decision in a different case, addressing a similar motion to reconsider
submitted by YHT’s counsel, this Court explicitly ruled that pre-trial orders
governing discovery are not immediately appealable. Progressive Ins. Co. v.
S. Star Int’l, 5 A.S.R.3d
82, 84-85 (Trial Div. 2001). The
Court’s reasoning was founded on statutes, caselaw and legal reasoning barring
interlocutory orders from appeal unless they are final or else fall within the
collateral order exception. Id.; A.S.C.A. § 43.0802.
The collateral order exception
applies to orders that (1) conclusively resolve the disputed question; (2)
resolve an important issue completely separate from the merits of the action;
and (3) [are] effectively unreviewable on appeal from the final judgment in the
main case.” Kim v. Am. Samoa Gov’t, 17 A.S.R.2d 193, 195 (App. Div. 1990). The Court in Progressive found that
pre-trial orders governing discovery do not fall within either the finality or
collateral order exception, but rather may only be challenged on appeal from a
final decision. 5 A.S.R.3d at 85.
21, 2001 Order Denying YHT’s Motion to Compel Discovery was not a final order,
and does not fall within the collateral order exception. YHT’s present motion to reconsider such an
interim order is neither authorized nor appropriate, and, as such, is ripe for
[2-3] Given the apparent antagonism between the attorneys and
clients involved in the current case, we find it advisable to order the
attorneys to appear before the court to discuss and settle discovery
issues. Our authority to call such a
discovery conference is explicitly given by T.C.R.C.P. 26(f), which states:
At any time
after commencement of an action the court may direct the attorneys for the
parties to appear before it for a conference on the subject of discovery.
We note that the Federal Rules of Civil Procedure have
been amended to mandate such a conference, and require that four subjects be
addressed during a discovery conference: (1) timing, in terms of what should be done in terms of the
timing, form, or requirement for disclosures, including a statement as to when
disclosures were made or will be made; (2) subjects of discovery, in terms of
which subjects on which discovery may be needed, when discovery should be
completed, and whether discovery should be conducted in phases or be limited to
or focused upon particular issues; (3) limitations on discovery, in terms of
what changes should be made in the limitations on discovery imposed under these
rules or by local rule, and what other limitations should be imposed; and (4)
other orders that should be entered by the Court, such as protective orders, or
pretrial conference issues. 6 James W. Moore et al.,
Moore’s Federal Practice § 26 (3d
ed. 1999) (SP26-5 Rule); 8 Charles Alan
Wright et al., Federal Practice and
Procedure § 2051.1 (2d ed.
1990). Although we by no means adopt the
federal rule requiring such conferences, we find the rule’s four designated
areas of discussion extremely practical for present purposes, as guidelines for
what we anticipate addressing at the discovery conference. As such, we require that both parties’
counsel file the following before the discovery conference:
1. A list of
subjects to be addressed by discovery, either as a whole or in phases;
2. A proposed
plan and schedule of discovery;
limitations to be placed on discovery in addition to those already adjudicated
by the court; and
4. Any other
proposed orders with respect to discovery.
[4-5] We note that, in line with T.C.R.C.P. 26(f), all parties and
their attorneys are under a duty to participate in good faith in framing a
discovery plan. An order of the Court
will be issued after the discovery conference:
identifying the issues for discovery purposes, establishing a plan and schedule
for discovery, setting limitations on discovery, if any; and determining such
other matters, including the allocation of expenses, as are necessary for the
proper management of discovery in the action.
1. The motion to reconsider the order denying the
motion to compel discovery is denied.
2. Both counsel shall submit their
respective discovery conference statements on the matters set forth above to
the Court by May 25, 2001. The discovery conference is scheduled on June 4,
It is so