United States District Court, D. Hawaii
ORDER REGARDING DEFENDANT COUNTY OF MAUI'S
SUBMISSION OF DOCUMENTS UNDER SEAL FOR REVIEW AND MOTION FOR
DETERMINATION OF PRIVILEGE PURSUANT TO FED. R. CIV. P. RULE
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant County of Maui's Submission of
Documents Under Seal for Review and Motion for Determination
of Privilege Pursuant to Fed.R.Civ.P. Rule 26(b)(5)(B), filed
April 7, 2017 (“Motion”). ECF No. 121. Plaintiffs
filed their Opposition to the Motion on April 21, 2017. ECF
No. 123. Defendant County of Maui filed its Reply on May 5,
2017. ECF No. 124. Pursuant to Local Rule 7.2(d), the Court
found this Motion suitable for disposition without a hearing.
ECF No. 122. After carefully reviewing the parties'
submissions and the relevant legal authority, the Court
ORDERS as follows.
Spirit of Aloha Temple and Fredrick R. Honig applied for a
State Land Use Commission Special Permit to build a church
and hold religious events on a parcel of land located in the
County of Maui. After the application was denied, Plaintiffs
filed their Complaint in this court asserting claims for
violations of the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. § 1983, and the Hawaii
constitution against both the Maui Planning Commission and
the County of Maui. See ECF No. 1.
R. Honig is a licensed minister and teacher of
“Integral Yoga.” Id. ¶ 21. Spirit
of Aloha Temple is a 501(c)(3) tax-exempt organization that
was incorporated as a church in 2007 to promote Integral
Yoga, and leases an eleven-acre parcel located in Haiku,
Maui, which is zoned “Agriculture” and is in a
Special Management Area. Id. ¶¶ 26, 36-40,
43-44. The property is being used for limited
“secular” purposes, including a botanical garden,
bird sanctuary, and staff housing. Id. ¶ 45.
first applied for a special use permit to use the property as
a church, which was denied in 2010 by the Maui Planning
Commission on various grounds. Id. ¶ 52. In
2012, Plaintiffs filed another application for a special
permit to use the property for the same religious purposes,
including educational programs and wedding ceremonies.
Id. ¶ 85. The Maui Planning Department issued a
report and recommendation that the permit be issued.
Id. ¶ 94. However, after a public hearing in
which several residents in the surrounding area expressed
concern about road safety given increased traffic to and from
the property, various zoning violations by Plaintiffs, and
the impact of increased numbers of visitors on community
resources, the Maui Planning Commission voted to deny the
application. Id. ¶ 132. The Maui Planning
Commission set forth its findings and conclusions in its
Decision and Order of October 30, 2014 (“October 2014
January 27, 2016, the district court declined to exercise
supplemental jurisdiction over one of Plaintiff's state
law claims, dismissed all other claims against the Maui
Planning Commission, and stayed all other claims against
Defendant County of Maui pending the resolution of
Plaintiff's administrative appeal of the October 2014
Decision. See ECF No. 109. On February 13, 2017, the
stay was lifted. ECF No. 114. The present Motion followed.
present Motion, Defendant asks the Court to determine whether
certain documents produced by Plaintiffs' expert are
protected by the work product doctrine as asserted by
Plaintiffs. See ECF No. 121.
work product doctrine is set forth in Rule 26(b)(3) of the
Federal Rules of Civil Procedure, which protects from
discovery documents that are prepared in anticipation of
litigation or for trial by or for another party or its
representative. See Fed.R.Civ.P. 26(b)(3);
United States v. Richey, 632 F.3d 559, 567 (9th Cir.
the materials at issue are email communications produced to
Defendant by Plaintiffs' retained expert, Alan Bradbury.
Rule 26(b)(4)(C) specifically addresses expert material and
states that “regardless of the form, ”
communications between a party's attorney and any
retained expert are protected from disclosure in discovery,
subject to certain exceptions. See Fed. R. Civ. P.
the following communications between Plaintiffs' counsel
and Mr. Bradbury or his assistant are protected from
discovery by the work product doctrine set forth in Rule
(1) email dated 1/8/2016 from Summer Bradbury to Roman
Storzer forwarding an email from Maui Nui Botanical ...