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Archive for 2011

Hawaii’s Best Law Firms

Tuesday, November 1st, 2011

U.S. News Media Group and Best Lawyers have released their 2011 – 2012 “Best Law Firms” rankings.  The Law Offices of Philip R. Brown was ranked among the best law firms in the state of Hawaii in the following practice areas:

Commercial Litigation

Litigation – Eminent Domain and Condemnation

Litigation – Real Estate

Tier Two

For a discussion of the methodology of the U.S. News – Best Lawyers Law Firm Rankings click here .

Although attorney Philip R. Brown has received a number of individual honors [Click here], it is particularly gratifying for his law firm to be recognized among the best law firms in Hawaii.  Founded in 1997 as a boutique litigation firm, the Law Offices of Philip R. Brown represents plaintiffs and defendants in commercial litigation, real estate litigation, and select personal injury matters.

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Philip R. Brown Named Fellow of the Litigation Counsel of America

Saturday, September 10th, 2011

Philip R. Brown of the Law Offices of Philip R. Brown has been named a Fellow of the Litigation Counsel of America (LCA).  Membership is limited to 3,500 lawyers nationally, and Mr. Brown is one of only 14 LCA Fellows from Hawaii.  The composition of the LCA is aggressively diverse, with recognition of excellence among American litigation and trial counsel across all segments of the bar.

The LCA is an invitation-only trial lawyer honorary society composed of less than one-half of one percent of American lawyers.  Fellowship in the LCA is highly selective and fellows are selected after being evaluated on effectiveness and accomplishment in litigation and trial work, both at the trial and appellate levels, and superior ethical reputation.

Read more about the Litigation Counsel of America at http://www.litcounsel.org/litcounsel/about_overview.htm

Philip Brown is also listed in The Best Lawyers in America under Commercial Litigation and Real Estate Litigation. Mr. Brown also has the highest ethical/legal rating (AV) from Martindale Hubbell. Mr. Brown is also listed by the National Trial Lawyers Association in the Top 100 Trial Lawyers. Mr. Brown is listed in the Bar Register of Preeminent Lawyers under Civil Trial Practice, Commercial Litigation, and Personal Injury. Mr. Brown has also been recognized in Honolulu Magazine as one of the Best Lawyers in Hawaii.

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Consumer Rights in Hawaii

Saturday, September 3rd, 2011

Consumers injured by deceptive marketing materials have recourse in the State of Hawaii.  We have previously written concerning the Hawaii Unfair and Deceptive Trade Practices Act.  H.R.S. § 480-2      

H.R.S. § 480-2 is a powerful tool to protect consumers and investors from advertisers whose marketing materials have a “tendency to mislead.”  Under H.R.S. § 480-2, an injured “investor or consumer” may be awarded treble damages, costs, and attorney’s fees under H.R.S. § 480-13.  The Hawaii Supreme Court has upheld this statute in multiple opinions. 

The United States Court of Appeals for the Ninth Circuit has also written an important opinion applying H.R.S. § 480-2 in the federal courts.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087 (9th Cir. 2010).  In Yokoyama, the Court affirmed that a person alleging a H.R.S. § 480-2 claim need not show that they were actually deceived.  Rather, the § 480-2 claimant need only establish that the advertising material in question had “the capacity to deceive.”  Yokoyama at 1093. 

The facts of Yokoyama illustrate the power of the Act.  In Yokoyama, the plaintiffs were a group of senior citizens living in Hawaii.  Yokoyama v. Midland Nat’l Life Insurance Co., 243 F.R.D. 400, 401 (D. Hawaii 2007).   Each purchased annuities sold by Midland National Life Insurance.  Id.  The plaintiffs did not purchase the annuities directly from Midland, but rather each plaintiff bought their annuities from an independent broker.  Id. at 403 The independent brokers were required to give a prospective purchaser a brochure created by Midland prior to selling the annuity.  Id.  Additionally, the independent brokers were allowed to “discuss, promote, or disparage” the annuities, as long as they were truthful.  Id.  The buyers claimed that the brochures provided by Midland, but given to them by the independent brokers, were deceptive.  Id.

The plaintiffs then brought a § 480-2 claim against Midland and asked the Court to certify their action as a class action.  Yokoyama, 243 F.R.D. at 405.  The District Court denied certification.  Id.  It reasoned that because each plaintiff was counseled by independent brokers, the individual plaintiffs would each have a different understanding of Midland’s brochure – some plaintiffs might not have even been deceived.  Id.  Thus, it determined that class certification would not properly serve the plaintiffs.  Id.

The Ninth Circuit disagreed.  On appeal, the Ninth Circuit determined that the District Court erred when it, in essence, required the plaintiffs to show that Midland’s brochure actually deceived them in order to state an H.R.S. § 480-2 claim.  Yokoyama v. Midland Nat’l Life Insurance Co., 594 F.3d 1087, 1092 (9th Cir. 2010).  Relying on Hawaii authority, the Ninth Circuit determined that a H.R.S. § 480-2 claim does not require that the plaintiff to actually be deceived.  Id.  The question is whether the brochure had “the capacity to deceive.”  Id.  The Ninth Circuit reversed the District Court’s decision and remanded for further proceedings.  Id. at 1093.

The Yokoyama case is a strong affirmation of Hawaii law and the Hawaii courts’ interpretation of H.R.S. § 480-2.  Both the Federal and State courts are clear.  A plaintiff does not need to demonstrate that they were actually deceived in order to sustain an H.R.S. § 480-2 claim – only that the marketing materials in question have the “capacity to deceive.”

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Civil Discovery in Hawaii Federal Court

Wednesday, August 31st, 2011

In Hawaii, if your case is in the United States District Court for the District of Hawaii (“Hawaii Federal Court’), then the Federal Rules of Civil Procedure (FRCP) and the Local Rules for the Hawaii Federal Court apply.  These rules provide that certain steps be taken prior to commencing discovery.

According to FRCP 26(d), “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)…”  FRCP Rule 26(d).  FRCP Rule 26(f)(2) explains the purpose of the conference of the parties as follows:

In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.

FRCP Rule 26(f)(2).

The Rule 26(f) conference of the parties must be completed at least 21 days before the scheduling conference.  FRCP Rule 26(f)(1).  Then, pursuant to Rule 26(c), “a party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference…”  FRCP Rule 26(c).

Initial Disclosure require the following:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information–along with the subjects of that information–that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy–or a description by category and location–of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party–who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

FRCP Rule 26(a).

As such, pursuant to Rule 26(d), discovery cannot be commenced until the conference of the parties has taken place.  Then, initial disclosures are required in addition to any discovery responses.  These rules ensure that parties meet to discuss how discovery is going to be conducted and that certain disclosures are made in the beginning of the case to encourage an efficient discovery process.

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Agency Relationship in Hawaii

Tuesday, August 16th, 2011

A person may be held liable for the acts of another if an agency relationship is established.  According to the Hawaii Supreme Court, “an agency relationship may be created through actual or apparent authority.”  Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. 509, 515-17 (1992) (Brackets and citations omitted.).  There are two types of actual authority; express actual authority and implied actual authority.  Id.  Express actual authority is created by an express agreement.  Id.  In the alternative, implied actual authority “may arise either independent of any express grant of authority or it may arise as a necessary or reasonable implication required to effectuate some other authority expressly conferred by the principal.”  Id.  “The focus is on the agent’s understanding of his authority inasmuch as the relevant inquiry is whether the agent reasonably believes, because of the conduct of the principal (including acquiescence) communicated directly or indirectly to him, that the principal desired him so to act.” Id.

With regard to apparent authority, the Hawaii Supreme Court held in Cho also held as follows:

Apparent authority arises when “the principal does something or permits the agent to do something which reasonably leads another to believe that the agent has the authority he was purported to have.”  The critical focus is not on the principal and the agent’s intention to enter into an agency relationship, but on whether a third party relies on the principal’s conduct based on a reasonable belief in the existence of such a relationship.  Apparent authority can occur under the following circumstances:

 (1)The principal has manifested his consent to the exercise of such authority or has knowingly permitted the agent to assume the exercise of such authority; (2). . . the third person knew of [the principal’s actions]. . .and, acting in good faith, had reason to believe, and did actually believe, that the agent possessed such authority; and (3) . . . the third person, relying on such appearance of authority, has changed his position and will be injured or suffer loss if the act done or transaction executed by the agent does not bind the principal.

Cho Mark Oriental Food, Ltd. v. K & K Intern., 73 Haw. at 516-17.  (Brackets and citations omitted.)

When an agent acts with apparent authority, “the principal can be vicariously liable to wronged third parties even when the agent acts wholly out of personal motive or with the purpose of defrauding his principal and even when the principal is innocent and deprived of any benefit.”  Premium Financing Specialists, Inc. v. Hullin, 90 S.W.3d 110, 113 (Mo.App.W.D. 2002).  It is important to make sure that anyone purportedly acting as your agent is acting in your best interests since you may be liable for his or her actions.

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The American Jury

Friday, August 12th, 2011

The following is a blog written by our office manager, Warren Fabro.  I wholeheartedly agree with him.

Broadcast television has always been full of dramatic pieces on the legal system.  With the many channels now available to the public, it is hard not to notice the wealth of shows covering legal proceedings.  Based on the number of shows covering legal proceedings from criminal trials to trials involving popular sports figures, it would seem that the public has an insatiable appetite for legal drama.  We are inundated with coverage of trials on news shows, news networks, and talk shows every day and it seems that there is no shortage of legal experts and pundits.  While watching the backlash of the recent Casey Anthony verdict, I couldn’t help but notice the strong negative reaction to the Jury which rendered the eventual verdict. 

A few years ago, I had the honor of serving on a Jury in the United States District Court for the District of Hawaii during criminal trial.  I remember sitting in the Jury pool going through the rounds of questioning by the prosecution and defense attorneys all the while thinking that, based on my legal background in trial work, I had little chance of being chosen.  However, to my surprise, I made the cut at every round of questioning and eventually was chosen as a juror (and at the end of trial, the Jury foreman).  At first I was reluctant to serve as a juror as I knew that it would consume an enormous amount of time and would cause me to miss work.  Looking at the situation in a different light, I realized that this could be a great experience for me to see a trial through the eyes of a juror.  Indeed, it turned out to be truly memorable experience.  I have been involved in numerous trials as a trial paralegal and it was refreshing to obtain a viewpoint from the other side of the fence.  It gave me a new perspective and appreciation of the American judicial system.  I came away with a new found respect for Juries and the American justice system. 

The general public may criticize and even lambast a Jury if a verdict reached does not agree with ones own opinion of what a verdict should be.  However, based on my experience serving as a Jury foreman, I was reminded that a Jury can only view the evidence presented to them at the time of trial and after that evidence is presented during the trial, the Jury must follow the specific instructions of the Court to render a verdict.  Indeed, after we (the Jury) delivered our verdict in that trial, I learned of information about the defendant and circumstances about the case that was never revealed to the Jury as I assumed the trial attorneys had filed the appropriate motions to disallow the entering of this evidence into trial.  Although I felt that this information would probably not have changed the verdict, it reminded me that as a Jury we were limited to the evidence entered into the record during the trial for our review and consideration in formulating the verdict.

It is quite easy to pass judgment on a Jury’s verdict but one must remember the limitations put upon the Jury insofar as the evidence actually entered into the record during trial as well the Court’s specific instructions given at the close of the presentation of evidence and closing arguments by the attorneys.  Our American justice system, while not perfect, is the finest in the world and allows the general public to participate and, to a certain extent, play a part in shaping laws that govern our great country.  While the media seems to focus on trials in America, one should remember that justice systems in many other countries in the world do not offer its citizens the same rights and freedoms afforded to the American public.

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Misrepresentation and Fraud in Hawaii

Tuesday, August 9th, 2011

If a person or entity has been deceived, Hawaii law provides for a means of redress.  Under Hawaii’s doctrine of fraudulent inducement, if a person enters into a contract due to the misrepresentations of the other contracting party, the person lied to may ask the court to invalidate the terms of the contract.  The Hawaii Supreme Court recognizes the elements of fraudulent inducement to be as follows:

To constitute fraudulent inducement sufficient to invalidate the terms of the contract, there must be (1) a representation of material fact, (2) made for the purpose of inducing the other party to act, (3) known to be false but reasonably believed true by the other party, and (4) upon which the other party relies and acts to [his or her] damage.

Matsuura v. E.I. du Pont de Nemours and Co., 102 Hawaii 149, 162-63, 73 P.3d 687, 700-01 (Hawaii 2003) (quoting Hawaii Community Federal Credit Union v. Keka, 94 Hawaii 213, 230, 11 P.3d 1, 18 (2000)).

However, not every representation will be actionable.  The Intermediate Court of Appeals has held that only the following representations are actionable:

The false representation, to be actionable, must relate to a past or existing material fact, and not to the happening of future events[.]  Generally, fraud cannot be predicated upon statements [that] are promissory in their nature at the time they are made and [that] relate to future actions or conduct.  A promise relating to future action or conduct will be actionable, however, if the promise without the present intent to fulfill the promise[.]

Pancakes of Hawaii, Inc. v. Pomare Properties Co., 85 Hawaii 300, 312 944 P.2d 97, 109 (Haw.Ct.App. 1997) (quoting Honolulu Federal Savings and Loan Ass’oc v. Murphy, 7 Haw.App. 196, 200 753 P.2d 807, 811 (Haw.Ct.App. 1988)). 

Additionally, the party seeking to have the contract invalidated must prove that his or her reliance on the false representation was a reasonable one.  Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116 Hawai’i 277, 172 P.3d 1021 (2007).  Finally, in addition to the above mentioned elements, the party seeking to invalidate the contract will have to prove that he or she suffered some sort of injury or damage as a result of the other party’s misrepresentations.  Matsuura, 102 Hawaii at 163, 73 P.3d at 701. 

Moreover, the Hawaii Unfair and Deceptive Trade Practices Act (H.R.S. § 480-2) provides a remedy to consumers and investors injured through marketing materials that had a “capacity to mislead.”  A Plaintiff prevailing in a claim under H.R.S. § 480-2 may be awarded treble damages, attorneys fees and costs (H.R.S. § 480-13). 



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An Employer May be Held Liable for an Employee in Hawaii

Friday, August 5th, 2011

There are several theories under which an employer may be held liable for the acts of an employee.  The most straightforward is called respondeat superior liability.  The elements of respondeat superior liability are (1) employee negligence (2) within the scope of the employee’s employment.  Id. (citations omitted). In defining the scope of an employee’s employment, the Hawaii Supreme Court reiterated its approval of Restatement (Second) of Agency §228 (1958) which states as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:

        (a) it is of the kind he is employed to perform;

        (b) it occurs substantially within the authorized time and space limits;

        (c) it is actuated, at least in part, by a purpose to serve the master, and

        (d) if force is intentionally used by the servant against another, the use of  force is not unexpectable by the master.

Restatement (Second) of Agency §228 (1958) 

“An employer may be liable for the intentional torts of its employees as the law now imposes liability whether the employee’s purpose, however misguided, is wholly or in part to further the master’s business.”  State v Hoshijo ex rel. White, 102 Hawaii 307, 318, FN 27 (Hawaii, 2003).  In Wong-Leong v Hawaiian Independent Refinery, Inc., 76 Hawaii 433, 438 (1994).

“In instances where an employer cannot be held vicariously liable for its employee’s torts, the employer can still be held liable under theories of negligent hiring, negligent retention, and negligent supervision.  However, a necessary element of such causes of action is that the employer knew or should have known of the employee’s propensity for the conduct which cause the injury.”  Kenneth R. v Roman catholic Diocese of Brooklyn, 229 A.D.2d 159, 161 (N.Y.A.D. 2 Dept, 1997)

Indeed, Hawaii recognizes an action for negligent supervision.  See Costa v Able Distributors, Inc., 3 Haw.App. 486, 490 (Hawaii App., 1982).  In Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000), the Hawaii Supreme Court looked to the Restatement (Second) of Torts § 317 for the standards for a claim of negligent supervision by an employer.  According to Restatement (Second) of Torts § 317, an employer may be liable for negligent supervision if its employee intentionally harms another when the employee (i) commits the harm on the employer’s property or with the use of the employer’s chattels, (ii) the employer knows or should have known that the employer has the ability to control its employee and (iii) the employer knows or should have known that the employee needed to be controlled. 

Under the theory of negligent supervision, “an employer’s duty to control the conduct of his employee may arise when the acts complained of are so connected in time and place with the employment as to give the employer a special opportunity to control the employee.”  Costa v Able Distributors, Inc., 3 Haw.App. at 490.  As previously mentioned, “in order for the plaintiff to recover, he must show that the employer knew or should have known of the necessity and opportunity for exercising control over the employee.”  Id.  For example in Costa, the Hawaii Court of Appeals stated that the employer’s duty would arise only if the employer knew or should have known that the employee had a “propensity for causing automobile collisions while driving under the influence of alcohol, and thus, [the employer] should have prevented [the employee] from consuming beer on its premises.” 

Unlike the theory of respondeat superior where the employer is vicariously liable for the acts of its employees “that occur within the scope of employment,” a claim for negligent supervision, requires that the employee acted “outside of his or her employment.”  See Dairy Road Partners v Island Insurance, 92 Hawaii 398, 426-27 (Hawaii, 2000).  Therefore, a complaint fails to state a claim for negligent supervision if the complaint fails to assert that the employee acted outside the scope of his employment.  Dairy Road Partners at 427.

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Hawaii’s 30th Traffic Fatality of 2011

Saturday, July 30th, 2011

Hawaii suffered its 30th traffic fatality of 2011  According to Hawaii News Now the fatality was a woman visiting from Oklahoma with her husband.  Her husband was “rushed to the Queen’s Medical Center in critical condition, but later improved to serious condition.”  The couple was driving a rented Harley when a truck collided with them on the Likelike Highway.  The 57-year-old man who was driving the truck was booked this morning for “negligent homicide and negligent injury.”  This fatal accident was the second accident in two days on the Likelike Highway, causing the highway to be shut down for several hours both yesterday and today.  Today’s accident is already “the 30th fatality on Oahu’s roads this year compared to 36 this time last year.” For more on this accident, which occurred this morning, please click the Hawaii News Now link below:


Yesterday’s accident on the Likelike Highway involved a suspect who had “four drug and burglary felony convictions and six misdemeanor convictions” going as far back as 1997.  Although the driver caused yesterday’s accident by speeding the wrong way on the Highway that accident fortunately did not result in any fatalities.

 According to the Star Advertiser:

 Police are looking for a suspect as the possible driver of a stolen Lexus that was driven the wrong way on the Likelike Highway and crashed into a police car while trying to elude authorities. Police arrested 33-year-old Mililani man, possibly a passenger, at the scene of the crash near Wilson Street just past Kalihi Valley Homes. But the other suspect fled on foot after the crash.

The suspect in custody and the police officer from the Kalihi district were not injured. 

The incident began on the Windward side of the Wilson Tunnel. The black Lexus, heading in the Honolulu direction, crossed over to the Kaneohe-bound lanes of the Likelike Highway and hit the police car near the Wilson Street intersection.  The police car, which was going in the right direction on the highway, swerved to try to avoid the stolen car, officers said. 

Police closed the Kaneohe-bound lanes of the highway for three hours following the collision at about 2:30 a.m. Motorists traveling to the Windward side were diverted off the highway to surface streets at Kalihi Street. Police reopened the highway at 6:06 a.m. The 33-year-old suspect was taken to the Beretania street cellblock and held on a motor vehicle charges. Court records show the suspect has four drug and burglary felony convictions and six misdemeanor convictions, starting in 1997.

Police are investigating the incident as possible case of attempted murder. 

The Lexus sustained extensive damage to its front end. Most of the damage to the police car was on the right rear side of the vehicle.


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Changes to Discovery of Expert Witnesses

Saturday, March 5th, 2011

Under the Federal Rules of Civil Procedure (“FRCP”) Rule 26, a trial expert must provide a written report to the court and opposing party.  From 1993 to December 1, 2010, the Federal Rules of Civil Procedure, Rule 26 required that the expert’s written report:

contain a complete statement of all opinions to be expressed and the basis and reasons therefore, the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

The Federal Courts interpreted the language “data or other information” to mean that communications between an attorney and expert witness, and the expert witness’s draft reports were discoverable.  Comments to FRCP Rule 26 detail problems that arose from allowing discovery of an attorney-expert communications and an expert’s draft reports:

Many courts read the disclosure provision to authorize discovery of all communications between counsel and expert witnesses and all draft reports.  The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects.  Costs have risen.  Attorneys may employ two sets of experts–one for purposes of consultation and another to testify at trial–because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses.  At the same time, attorneys often feel compelled to adopt a guarded attitude toward their interaction with testifying experts that impedes effective communication, and experts adopt strategies that protect against discovery but also interfere with their work.

Comments to Federal Rules of Civil Procedure, Rule 26.

On December 1, 2010, changes to FRCP Rule 26 took effect.  Rule 26(a)(2)(ii) now provides that an expert witness’ expert report need only list the “facts or data” (as opposed to “data and other information”) that the expert used in forming his or her opinion. 

Moreover, the FRCP Rule 26(b)(4) now explicitly classifies an expert witness’ draft expert report and communications between a party’s attorney and expert witness as attorney work product, and thus not discoverable by the opposing party.  FRCP Rule 26(b)(4) states as follows:

(4) Trial Preparation: Experts.

(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.

(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.

(C) Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) relate to compensation for the expert’s study or testimony;

(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or

(iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:

(i) as provided in Rule 35(b); or

(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:

(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and

(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert’s facts and opinions.

Rule 26(b)(4) also allows for the discovery of communications between a party’s attorney and expert witness in three subject areas.  The three areas that are discoverable are communications that (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.

The changes to the discoverability of an expert witness’ draft report and communications between a party’s attorney and expert witness will allow for open communication between attorney and expert and require less precautionary measures.  This should result in reduced litigation cost for clients. 

While the changes were made only to the Federal Rules of Civil Procedure, Hawaii often adopts provisions from the Federal Rules.  In fact, Hawaii state courts, in interpreting provisions of the Hawaii Rules of Civil Procedure, often consider the FRCP for guidance.  Although Hawaii has yet to adopt the changes in the Federal rules relating to expert testimony, it would appear to be only a matter of time.

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