5ASR3d88

Series: 5ASR3d | Year: () | 5ASR3d88
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YHT, INC., Plaintiff,

 

v.

 

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

Trial Division

 

CA No. 92-00

 

May

1, 2001


 

 

[1] 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.

 

[2] T.C.R.C.P. 26(f) authorizes court

to call discovery conference.

 

[3] 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.

 

[4] All parties

and their attorneys are under duty to participate in good faith in framing

discovery plan.

 

[5] 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

discovery.

 

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

CONFERENCE

 

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.

 

[1] 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.

 

Our February

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

denial.

A.  Discovery 

Conference

 

[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;

3. Proposed

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:

 

tentatively

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.

 

T.C.R.C.P. 26(f).

 

Order

 

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,

2001.

 

It is so

ordered.

 


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