FSM 3 Intrm. 179-181

FSM SUPREME COURT

TRIAL DIVISION (Pon.)

Cite as Mailo v. Twum Barimah,

3 FSM Intrm. 197 (Pon. 1987)

[3 FSM Intrm. 179]

ERENCIA MAILO,

Plaintiff,

DANIEL TWUM BARIMAH,

Defendant.

CIVIL ACTION NO. 1986-045

MEMORANDUM OPINION

OPINION

Before Edward C. King

Chief Justice

FSM Supreme Court

August 11, 1987

APPEARANCES:

For the Plaintiff: R. Barrie Michelsen

P.O. Box 1480

Pohnpei, FSM 96941

For the Defendant: Robert L. Keogh

P.O. Box GZ

Agana, Guam 96910

* * * *

HEADNOTES

[3 FSM Intrm. 180]

Evidence - privileges;

Attorney, Trial Counselor and Client - attorney's fees

Information concerning the source of funds for payment of attorney's fees of a particular party normally is not privileged information. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987).

Attorney, Trial Counselor and Client - attorney's fees;

Civil Procedure - Discovery

Forced disclosure of arrangements for payment of attorney's fees intrudes, in some degree, upon the attorney-client relationship and can be an "annoyance" within the meaning of the FSM Civ. R. 26(c) provisions concerning protective orders. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987).

Attorney, Trial Counselor and Client - attorney's fees;

Civil Procedure - Discovery

Unless the questioning party is able to show some basis for believing there may be a relationship between an attorney's fee and the subject matter of the pending action, objections to efforts to discover the attorney's fee arrangement may be upheld. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

This afternoon, without prior notice, counsel for both parties came to my chambers concerning a dispute which arose during questioning by counsel for defendant in the deposition of plaintiff Erencia Mailo. The proceeding was off the record and an oral ruling was made. This memorandum is filed to confirm that ruling.

Mr. Keogh, counsel for defendant, asked Ms. Mailo during the deposition whether John Brackett agreed to pay any part of the attorney's fees which she might incur in connection with this litigation. Mr. Michelsen, plaintiff's counsel, objected to the question and instructed his client to refuse to answer. Both counsel then presented the issue to me.

Mr. Michelsen points out that in a previous case, I did not require that the opposing party divulge to him the source of funds from which that party was paying attorney's fees. He seeks the same ruling here.

Rule 26(b)(1) of this Court's Rules of Civil Procedure says:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter

[3 FSM Intrm. 181]

involved in the pending action.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Information concerning the source of funds for payment of attorney's fees of a particular party normally is not privileged information. Yet forced disclosure of arrangements for payment of attorney's fees does intrude in some degree upon the attorney-client relationship and can be an "annoyance" within the meaning of the FSM Civ. R. 26(c) provisions concerning protective orders. Payment of a party's attorney's fees often is entirely unrelated to the issues involved in the litigation. Thus, unless the questioning party is able to show some basis for believing there may be a relationship between an attorney's fee and the subject matter of the pending action, objections to efforts to discover the attorney's fee arrangement may be upheld.

In this case however, there is information indicating that although Mr. Brackett has not served as the attorney for Ms. Mailo, he has played some role in eliciting from her an affidavit and encouraging her to engage in this litigation.

Counsel for defendant argues, and I agree, that against the background of the information already obtained, the question in dispute appears a "reasonably calculated to lead to the discovery of evidence" bearing upon plaintiff's factual claims.

Accordingly, I have overruled plaintiff's objection and she has been instructed to answer the question.


	FSM SUPREME COURT TRIAL DIVISION (Pon.) Cite as Mailo v. Twum Barimah, 3 FSM Intrm. 197 (Pon. 1987) [3 FSM Intrm. 179] ERENCIA MAILO, Plaintiff, v. DANIEL TWUM BARIMAH, Defendant. CIVIL ACTION NO. 1986-045 MEMORANDUM OPINION OPINION Before Edward C. King Chief Justice FSM Supreme Court August 11, 1987 APPEARANCES: For the Plaintiff: R. Barrie Michelsen P.O. Box 1480 Pohnpei, FSM 96941 For the Defendant: Robert L. Keogh P.O. Box GZ Agana, Guam 96910 * * * * HEADNOTES [3 FSM Intrm. 180] Evidence - privileges; Attorney, Trial Counselor and Client - attorney's fees Information concerning the source of funds for payment of attorney's fees of a particular party normally is not privileged information. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987). Attorney, Trial Counselor and Client - attorney's fees; Civil Procedure - Discovery Forced disclosure of arrangements for payment of attorney's fees intrudes, in some degree, upon the attorney-client relationship and can be an "annoyance" within the meaning of the FSM Civ. R. 26(c) provisions concerning protective orders. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987). Attorney, Trial Counselor and Client - attorney's fees; Civil Procedure - Discovery Unless the questioning party is able to show some basis for believing there may be a relationship between an attorney's fee and the subject matter of the pending action, objections to efforts to discover the attorney's fee arrangement may be upheld. Mailo v. Twum-Barimah, 3 FSM Intrm. 179, 181 (Pon. 1987). * * * * COURT'S OPINION EDWARD C. KING, Chief Justice: This afternoon, without prior notice, counsel for both parties came to my chambers concerning a dispute which arose during questioning by counsel for defendant in the deposition of plaintiff Erencia Mailo. The proceeding was off the record and an oral ruling was made. This memorandum is filed to confirm that ruling. Mr. Keogh, counsel for defendant, asked Ms. Mailo during the deposition whether John Brackett agreed to pay any part of the attorney's fees which she might incur in connection with this litigation. Mr. Michelsen, plaintiff's counsel, objected to the question and instructed his client to refuse to answer. Both counsel then presented the issue to me. Mr. Michelsen points out that in a previous case, I did not require that the opposing party divulge to him the source of funds from which that party was paying attorney's fees. He seeks the same ruling here. Rule 26(b)(1) of this Court's Rules of Civil Procedure says: Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter [3 FSM Intrm. 181] involved in the pending action.... It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Information concerning the source of funds for payment of attorney's fees of a particular party normally is not privileged information. Yet forced disclosure of arrangements for payment of attorney's fees does intrude in some degree upon the attorney-client relationship and can be an "annoyance" within the meaning of the FSM Civ. R. 26(c) provisions concerning protective orders. Payment of a party's attorney's fees often is entirely unrelated to the issues involved in the litigation. Thus, unless the questioning party is able to show some basis for believing there may be a relationship between an attorney's fee and the subject matter of the pending action, objections to efforts to discover the attorney's fee arrangement may be upheld. In this case however, there is information indicating that although Mr. Brackett has not served as the attorney for Ms. Mailo, he has played some role in eliciting from her an affidavit and encouraging her to engage in this litigation. Counsel for defendant argues, and I agree, that against the background of the information already obtained, the question in dispute appears a "reasonably calculated to lead to the discovery of evidence" bearing upon plaintiff's factual claims. Accordingly, I have overruled plaintiff's objection and she has been instructed to answer the question.