Hawaii Attorney Legal Blog

When filing a motion in Hawaii State Court, the motion and all of its supporting documents (memorandum in support of motion; affidavits or declarations; exhibits, and notice of hearing and certificate of service) are delivered to the Court. The Court sets a hearing date and time and returns it to the moving party. The party filing the motion is then responsible for conforming the motion and serving it on the opposing party. The process of obtaining a Court hearing may take a few days to a week depending on the Court's workload.

Motions will be heard upon eighteen (18) days written notice in accordance with Rule 7 of the Hawaii Rules of the Circuit Court. However, if you need an expedited hearing date, you should file an Ex Parte Motion to Advance Time for Hearing to the Court along with the motion. It is important to note that the motion must be served on parties not less than 18 days prior to the date of the oral hearing.

Pursuant to the Rule 7(b) of the Hawaii Rules of the Circuit Courts, (i) opposition memoranda by an opposing party must be served and filed not less than eight (8) days prior to the date set for the oral hearing and (ii) reply memoranda must be served and filed not less than three (3) days before the date of the oral hearing. When calendaring these two deadlines, it is important to be aware that, pursuant to Rule 6 of the Hawaii Rules of Civil Procedure:

When the period of time prescribed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, "holiday" includes any day designated as such pursuant to section 8-1 of the Hawaii Revised Statutes.

H.R.C.P. Rule 6(a).

Pursuant to Rule 7(g) of the Hawaii Rules of the Circuit Courts, all pretrial motions that request entry of judgment or dismissal of any claim shall be filed no later than fifty (50) days prior to the assigned trial date.

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Labels: Civil Procedure and Trial Practice

When a foreign corporation has subjected itself to jurisdiction in the United States, exceptions to the general rule on the location of the deposition are often made. Id. at 466-67 citing Custom Form Mfg. v Omron Corp., 196 F.R.D. 333, 336 (S.D.N.Y., 2001). In considering whether a foreign corporation should be deposed in the United States rather than their own country, Courts have looked to "whether the time, expense, inconvenience of travel, presents a special hardship on the deponent, and the ability of the court to intervene should disputes arise." Id. citing Afram Export Corp. v Metallurgiki Halyps, 772 F.2d 1358, 1365 (7th cir., 1985). It appears that sophistication of the deposing party and disputes between the parties are weighed in considering the above mentioned factors. See Six West Retail Acquisition v Sony Theatre Management Corp., 203 F.R.D. 98 (S.D.N.Y., 2001).

Similarly, in Custom Form Mfg. v Omron, the Plaintiff sought to compel the Court to order that depositions be held in Indiana rather than Japan, which was the corporation's principal place of business. Custom Form Mfg. v Omron Corp., 196 F.R.D. at 336. In that case, the deposing party pointed out that "in Japan a witness cannot be compelled to produce anything, and also notes that Japanese laws forbid an employee, while on Japanese soil, from disclosing any information that its corporate employer may unilaterally label as a trade secret, even when the employee is under order of a United Stated Court to make such a disclosure." Id. The deposed party responded that this reading of Japanese law was unsupported and the Japanese discovery rules could be "averted by stipulations relating to the conduct of the deposition agreed upon in advance." Id. See also Dwelly v Yamaha Motor Corp., 214 F.R.D. 537, 541(D.Minn., 2003)("Having considered the respective arguments, we conclude that the deposition of a supplemental Rule 30(b)(6) deponent should be taken in location where the corporation, for whom the deponent testifies, is located. Our ruling would have been different, absent the Defendants' representation that they were waiving any insistence on adherence to Japanese procedures if the deposition were taken in Japan.") The Indiana District Court, after weighing the parties' arguments and a number of factors, concluded that "the best way to protect the discovery process in this case, and the best way to avoid sovereignty issues that might otherwise arise, is to compel that the Rule 30(b)(6) depositions of defendants' employees take place in the United States." Id. at 337. Further, "granting plaintiff's motion to compel depositions at the Indiana or Illinois location would require fewer of the participants involved on both sides of this matter to travel, this, in turn, would cut costs and provide an economic benefit for all." Id. at 338.

Moreover, in New Medium Technologies LLC. v Barco N.V , the Illinois District Court granted Plaintiff's Motion to Compel after it decided that "conducting depositions in Japan . . . would severely compromise-to put it mildly- the court's ability to intervene should problems arise." New Medium Technologies LLC. v Barco N.V., 242 F.R.D. at 467. Further, the Court was not persuaded by deponent's argument of "jet lag" because the witnesses were experienced businessmen who travel frequently. Id. at 468. Also, in response to deponent's argument that there absence would burden the corporation, the Court held that "highly placed executives are not immune to discovery, and the fact that an executive has a busy schedule cannot shield him or her from being deposed" and such result is the "cost of doing business in the United States." Id. at 469.

In addition, courts have allowed depositions of corporate defendants in alternate locations since "corporate defendants are frequently deposed in places other than the location of their principal place of business, especially when the deposition site is the forum most convenient to all parties and that which would best serves the general interest of judicial economy". Custom Form Mfg. v Omron Corp., 196 F.R.D. at 338 citing Sugarhill Records Ltd. v Motown Record Corp., 105 F.R.D. 166, 171 (S.D.N.Y., 1985).

Finally, with regard to how travel costs should be allocated between the parties, courts have broad discretion. New Medium Technologies LLC. v Barco N.V. F.R.D 462 at 468-69. However, "in considering who should bear the costs of depositions the court should keep in mind that the federal rules are to be construed to secure the just, speedy and inexpensive determination of every action." Custom Form Mfg. v Omron Corp., 196 F.R.D. at 338.

Labels: Civil Procedure and Trial Practice

With the rise of foreign corporations, the location of the deposition of a witness from a foreign corporation occasionally becomes an issue. The general local rule in Hawaii is that the deposition is conducted where the witness is located. Foreign corporations will almost always oppose travelling to Hawaii for deposition testing. However, Hawaii attorneys should not always concede this issue. There is a substantial body of law, concerning the site of depositions of foreign corporations. With respect to this issue, the Federal Rules of Civil Procedure Rule 30 (b)(6) provides as follows:

A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.

FRCP 30(b)(6).


In turn, "when an employee named in a deposition notice is a director, officer, or managing agent of [a corporate party], such employee will be regarded as a representative of the corporation. Thus, such deposition can be used against that corporate party at trial".

The general rule is that "a party may unilaterally choose the place for deposing an opposing party" subject to the any FRCP 26(c)(2) protective order providing otherwise. New Medium Technologies LLC. v Barco N.V. 242 F.R.D. 460, 465-66 (N.D. Ill., 2007). However, in instances where a party seeking to be deposed is a corporation defendant under FRCP 30(b)(6), the presumption is that the deposition should be taken at the corporation's principal place of business. Id.

The modern trend regarding this "presumption" indicates that it is not a presumption at all but rather a kind of rule that "facilitated determination when other relevant factors do not favor one side over the other." Id citing Bank of New York v Meridian BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y., 1997). Although "Courts have treated the 'presumption' with varying degrees of deference", "all are agreed that it may be overcome by a showing that 'peculiar' circumstances favor depositions at a different location." Id. Factors that the courts examine to overcome this presumption include "cost[s], convenience, and litigation efficiency [which] favor holding the deposition outside of the witnesses' district" (ie. the corporation defendant's principal place of business.) Id.

Labels: Civil Procedure and Trial Practice

This blog will discuss (i) whether the seller of a home has a duty to disclose material facts regarding the property to a buyer and (ii) whether the realtor and/or seller of a home has a duty to disclose material facts regarding the property to a buyer. The short answer is that a seller has an absolute duty to disclose material facts to the buyer. Although this obligation is usually handled by the seller in the disclosure statement, the legal obligation arises from the common law and a variety of statutes.

For example, pursuant to HRS section 508, a seller (or an agent of a seller, ie. real estate agent) may be found liable for failure to disclose defects in property sold. HRS section 508D-1 requires "disclosure by seller (and extended to realtor) of "material facts" relating to property that are (1) within the knowledge or control of the seller, or (2) can be observed from a visible, accessible area, or are required under section 508D-15." Material fact is defined as "any fact, defect, or condition, past or present, that would be expected to measurably affect the value to a reasonable person of the residential property being offered for sale."
However, there are several defenses available to the seller. Accordingly, HRS section 508D-13 provides that:

Information in a disclosure statement that has not been disclosed or becomes inaccurate regarding a material fact as a result of an act, agreement, or occurrence (or otherwise becomes known to seller) after the statement is provided to the buyer does not violate this chapter.

Therefore, if the material defects arise after the buyer purchased the home, then there is no valid claim against the seller.

There must be evidence that the seller had prior knowledge of the defect. According to HRS section 508D-1, "the material fact that is required to be disclosed must be within the knowledge of the seller or visible to the seller."

Labels: Hawaii Real Estate Litigation

An attorney may not represent a client against a former client in the "same or a substantially similar matter." The Hawaii Rules of Professional Conduct ("HRCP") Rule 1.9(a) Conflict of Interest: Former Client provides as follows:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation.

Hawaii Rules of Professional Conduct 1.9(a)(emphasis added).

Pursuant to HRCP Rule 1.10(a) Imputed Disqualification; General Rule

While lawyers are associated in a form, none of them shall knowingly represent a client when one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9 or 2.2.

"The objective of the disqualification rule is to 'preserve the integrity of the adversary process,' Evans v Artek Systems Corp., 715 F.2d 788, 791 (C.A.N.Y., 1983) citing Board of Education of the City of New York v Nyquist, 590 F.2d 1241, 1246 (2d Cir., 1979). By the same token, there are good reasons for requiring a "high standard of proof on the part of the one who seeks to disqualify his former counsel." Id. One reason is based on the notion that a client should have the right to freely choose his counsel and the other is based on the fact that disqualification motions cause delay to the case, which is generally frowned upon. Id.

The party moving for disqualification "has the burden of establishing (1) the existence of a prior attorney-client relationship with the attorney now sought to be disqualified; and (2) that that matter involved in the prior representation is substantially related to the matters embraced within the pending suit, wherein the attorney appears on the behalf of the opposing party." In re Jahore Inv. Co., Inc, 157 B.R. 671, 675 (D.Hawaii, 1985).

Courts in Hawaii and the Ninth Circuit have also held that if the burden is met by the moving party, then the there is a presumption that confidences were disclosed during the prior representation. Id. However, the Ninth Circuit has "sought to mitigate the harshness" of this presumption and made it rebuttable. Id. Therefore, "the Ninth Circuit requires that the evidence establish a 'reasonable probability' that confidential information was disclosed during the course of the prior representation." Id. Further, "disqualification may not be warranted where the 'professional relationship with [the former client] had been aborted before any significant work had been done. . .and before any discussions with the client other than the bare preliminaries of the representation were explored. . .'" Id. citing Trone v Smith 621, F.2d 994, 1000 (9th Cir., 1980).

As mentioned above, the moving party has a burden to show that there was a prior attorney-client relationship. Accordingly, in Davis v Wholesale Motors, Inc., the Hawaii Court of Appeals denied a Motion to Disqualify based on the failure of the moving party to show that a relationship existed. Davis v Wholesale Motors, Inc, 86 Hawaii 405, 424-425 (Hawaii.App., 1997). There was no evidence of any attorney-client relationship documented and "Nicolai [the moving party] could not remember what Lotsof [attorney] did with the documents [that the attorney allegedly reviewed for the moving party], how long the meeting lasted, or approximately when during the 1970s the meeting occurred." Id. (brackets added).

Labels: The Legal Profession

In my previous blog I discussed whether, under Hawaii law, a homeowner must pay for services provided by an unlicensed contractor. This blog will consider whether a subsequent procurement of a Hawaii license by a previously unlicensed contractor can validate a contract that was agreed upon while the contractor was still unlicensed.

It is my opinion that a subsequent procurement of a license by an unlicensed contractor will not validate a previously illegal contract. I will explain. In Hawaii, a contract made with an unlicensed contractor is, as a matter of law, an illegal contract since it is in violation of HRS chapter 444. Therefore, it seems likely that if a contractor obtains a license after the contract is created, he still will not be able to collect payment for work performed while previously unlicensed. See HRS 444-22. The statute itself provides that the failure to obtain a license shall prevent such persons from recovering for work done or material and supplies so long as "such person failed to obtain a license. . .prior to contracting for such work." (emphasis added). The clear language of the statute indicates that a license must be obtained before the contract was made in order to prevent the harsh consequences of HRS 444-22.

Although there is no Hawaii case directly on point, this is consistent with other state court rulings applying statutes similar to Hawaii's existing law. The North Carolina Supreme Court interpreted their statute strictly, holding that a contract "cannot be validated by the contractor's subsequent procurement of a license." Brady v Fulghum, 308 SE.2d 327, 331 (NC, 1983) affirmed by Jenco v Signature Homes, Inc., 468 S.E.2d 533, 535 (NC. App., 1996), and Currin & Currin Const., Inc. v Lingerfelt, 582 S.E.2d 321, 324 (NC. App., 2003). That North Carolina Court also rejected the unlicensed contractor's argument of "substantial compliance." Id. North Carolina courts have consistently read the statute strictly and without exceptions. Admittedly, North Carolina has subsequently changed its statute which superseded this holding. The current North Carolina statute expressly allows payment to a contractor who subsequently procures a license so long as that contractor substantially complied with the licensing requirements. California has also changed their statute to allow for "substantial compliance by the contractor". As of the creation of this blog, the Hawaii legislature has not so modified its statute.

The plain language of the Hawaii statute provides that the failure to obtain a license shall prevent such persons from recovering for work done or material and supplies so long as "such person failed to obtain a license. . . prior to contracting for such work." (emphasis added). It is likely that a Hawaii court will enforce this statute strictly and require that the procurement of a license must be made before the contractor (i) agrees to do the work and (ii) begins performance.

Labels: Hawaii Real Estate Litigation