Hawaii Attorney Legal Blog

In a lawsuit, Hawaii attorneys generally rely on two types of written discovery devices- interrogatories and document requests. Simply put, interrogatories are lists of questions that must be answered by the opposing party under oath. A discovery request lists categories of documents that must be produced for review by the opposing attorney. This blog will discuss each discovery device. A Hawaii party is required to timely respond to a Request for Answers to Interrogatories and to a Request for Production of Documents within thirty days after service of the request. If a party fails to respond to the discovery request within the thirty days, the party who served the discovery request may file a motion to compel answers to interrogatories or production. H.R.C.P. Rule 37(a)(2). However, under the Hawaii Model Rules of Professional Courtesy and Civility, Hawaii attorneys are required to "meet and confer" to attempt to solve any discovery issues before filing a motion to compel. If the "meet and confer" is unsuccessful, you may file a motion to compel. If the motion to compel is granted, the Court may award attorneys fees or costs (award the moving party's expenses incurred in obtaining the order compelling answers to interrogatories or production, including attorneys' fees, unless the court finds that the award of expenses would be unjust). Rule 37(a)(2) and (4), H.R.C.P.

Moreover, a "failure to serve objections to interrogatories and production of documents within the time period prescribed by the rule is a waiver of such objections." Bohlin v. Brass Rail, 20 F.R.D. 224 (E.D. Pa. 1957); Davis v. Romney, 53 F.R.D. 247 (E.D. Pa. 1971); United States v. Acres of the Land, 66 F.R.D. 570 (E.D. Ill. 1975); Perry v. Golub, 74 F.R.D. 360 (N.D. Ala. 1976); Fretz v. Keltner, 109 F.R.D. 303 (D. Kan. 1986; Brock v. Grace, 110 F.R.D. 58 (D. N.J. 1986). Consequently, a party's failure to respond within the thirty day period as prescribed by Rule 33, H.R.C.P., constitutes a waiver of any objections and all interrogatories must be answered in full and all documents requested must be produced.

Labels: Civil Procedure and Trial Practice

The Truth in Lending Act (TILA) found in 15 U.S.C.A. section 1601, et. seq. was enacted to "protect consumers and promote the 'informed use of credit.'" Washington v Americquest Mortgage.Co., 2006 WL 1980201, *6 (N.D.Ill., 2006). As such, TILA requires creditors to conspiciously disclose certain terms and costs information prior to a credit transaction. Id. This information includes, but is not limited to, the annual percentage rate and "finance charge," order of disclosures, and use of different terminology. 15 U.S.C.A. section 1632(a).

The Statute of Limitation on a TILA action is one year for closed ended credit cases pursuant to 15 U.S.C.A. section 1640. The exception to the one year statute of limitation is when the remedy sought is to enforce the right of rescission under 15 U.S.C.A. section 1635. 15 U.S.C section 1635 provides that in any consumer credit transaction in which a security interest is retained or acquired in any real property which is used as the residence of the person to whom credit is extended, the obligor has the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required by the Truth in Lending Act, whichever is later, by notifying the creditor of his intention to rescind. 15 U.S.C section 1635. 15 U.S.C section 1635 applies to loans on unimproved lots that are intended for recreational or residential use. Charnita, Inc. v. F. T. C., 479 F.2d 684, 686-87, (C.A.3, 1973).

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Labels: Commercial Litigation, Hawaii Real Estate Litigation

The tort of intentional interference with prospective economic advantage was examined by the Hawaii Supreme Court in Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc.

The primary objective of the tort of interference with prospective business advantage or opportunity is the protection of legitimate and identifiable business expectancies... Weighing against social and individual interests in protection of business expectancies and efforts to acquire property are the interests in legitimate business competition. That is, much of the common law is premised on the theory that competitors should have an opportunity to compete for business until such time as it is cemented by contract or agreement. Public and individual interests in free competition become particularly acute where a plaintiff anticipates, but is not yet assured, that a contractual or firm business relationship will materialize. Where the plaintiff's contractual relations are merely contemplated or potential, the public interest is best served by allowing any competitor the opportunity to divert those prospects to itself, so long as the means used are not themselves improper. Any contrary rule may tend to establish and perpetuate trade monopolies. As the "expectancy" becomes more remote or less firmly established, the interest in free competition among business persons becomes more compelling.

Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., 91 Hawaii 224, 258-59 (Hawaii, 1999)(superseded by statute as stated by Hawaii Medical Ass'n v. Hawaii Medical Service Ass'n, Inc., 113 Hawai'i 77 (Hawai'i, 2006) on unrelated grounds)(citing 2 Joseph D. Zamore, Business Torts 12.01[2], at 12-5 to 12-6 (1999) (footnotes omitted) (emphasis added).

Further, the Hawaii Supreme Court provided that,

[T]he following elements have evolved into the tort of intentional or tortious interference with prospective business advantage: (1) the existence of a valid business relationship or a prospective advantage or expectancy sufficiently definite, specific, and capable of acceptance in the sense that there is a reasonable probability of it maturing into a future economic benefit to the plaintiff; (2) knowledge of the relationship, advantage, or expectancy by the defendant; (3) a purposeful intent to interfere with the relationship, advantage, or expectancy; (4) legal causation between the act of interference and the impairment of the relationship, advantage, or expectancy; and (5) actual damages.

Id. (emphasis added).

In Robert's Hawaii School Bus, Inc. v Laupahoehoe Transp. Co., Inc., the Hawaii Supreme Court used the above factors and upheld the trial court conclusion that plaintiff's claim for intentional interference with prospective economic advantage failed since "there was insufficient evidence to show that: (1) such conduct was designed to disrupt appellants' relationship with DAGS; (2) the relationship had the probability of ripening into a future economic benefit for STI; (3) STI would have been awarded the Big Island routes; and/or (4) STI was injured and suffered damages."

In many cases, the tort of intentional interference with prospective economic advantage comes down to whether "absent the interference, the [prospective business] relations were reasonably likely to develop." Looney v M-Squared, Inc., 586 S.E.2d 44, 49 (Ga.App., 2003). In Looney v M-Squared, Inc., the Court of Appeals of Georgia held that even with defendants' interference, plaintiff corporation failed to show that plaintiff would have formed the alleged relationship. Looney v M-Squared, Inc., 586 S.E.2d at 49. Instead, the evidence showed that the corporation "decided not to pursue" that relationship. Id.

As noted, causation is also an element that must be established. "In order to be liable, a defendant's interference must cause the loss or, in other words, a defendant's conduct must not only qualify as improper interference, it must also actually induce the third party to terminate its relationship with the plaintiff." The Film and Tape Works, Inc. v Junetwenty Films, Inc., 856 N.E.2d 612, 620-21 (Ill.App. 1 Dist., 2006) See also Gruber v. Victor, No. 95 CIV. 2285, 1996 WL 492991 at *21 (S.D.N.Y., August 28, 1996). "[T]o maintain an action for intentional interference with prospective economic advantage there must be some certainty that plaintiff would have gotten the contract but for the defendant's interference." (citing Mandleblatt v Devon Stores, Inc., 521 N.Y.S.2d 672, 677 (1st Dept., 1987)(internal quotation omitted).

In The Film and Tape Works, Inc. v Junetwenty Films, Inc., defendants produced evidence that the third party corporation would have done business with defendants regardless if defendants worked for plaintiff corporation or for themselves. Id. Basically, the third party would have done business with defendant regardless of the presence of plaintiff corporation. Id. As such, the Appellate Court of Illinois held that defendants' action did not cause any damages to plaintiff. Id.

Labels: Commercial Litigation