Plaintiffs in a federal case alleging that public corruption stymied the development of agricultural lands on Oʻahu’s North Shore have backed off from their demand that the City & County of Honolulu produce documents they requested in February.
Attorneys representing the city and Department of Planning and Permitting director Dawn Apuna, as well as those representing four companies associated with the developer of the Marconi Point Condominiums, signed a stipulation on October 18, asking the U.S. District Court to extend the deadline by which the companies have to respond to the city’s opposition to their September motion to compel the production of documents.
They proposed a new deadline of November 14.
The plaintiffs have alleged that the DPP, which has recently seen a handful of its employees convicted of federal bribery charges, was prompted by former consultant William Wong to sit on or deny building permits that condominium unit owners had applied for. Like the DPP employees, Wong also went to prison for bribery.
The documents the plaintiffs have sought — first via a request under the Uniform Information Practices Act and then again as part of the federal case — were chosen because they are believed to be able to help suss out how, if at all, corruption played a part in the DPP’s decision that further development at Marconi Point required a Special Management Area permit.
The city produced some of the documents requested. However, those pertaining to the FBI’s corruption investigation into DPP, as well as certain emails and electronically stored information regarding dozens of Marconi-related search terms, were still outstanding when the companies filed their February motion to compel.
On October 10, counsel for the city filed its opposition memo. Even though the city believed the voluminous document requests were unreasonable — especially since the case had been narrowed to exclude claims regarding building permits and focus only on roadway and agricultural subdivision permits — it proceeded to respond. However, it ran into technical difficulties retrieving electronically stored information.
Some of the emails and other data, the city reported, had been damaged or lost. The city’s Department of Information Technology was able to restore some of that and provide it to the plaintiffs.
“Defendants continue to work on the issue and if there are no more technological issues, hope to provide the remaining data by the end of October. … To date, Defendants have provided approximately 10,000 pages of emails and their attachments to Plaintiffs,” the city’s counsel wrote.
While the city promised to continue to try to meet the plaintiffs’ requests, it made clear its disdain.
“Plaintiffs have not even bothered to claim that the requested documents are ‘relevant to any claims or defenses in this litigation.’ Plaintiffs have only made the conclusory statement that ‘WILLIAM WONG and [former DPP building plans examiner] KANANI PADEKEN, have direct ties to the disputed issues in this case.’ Plaintiffs have not shown how any emails or other documents involving either Wong or Padeken relate to Plaintiffs’ claims. The permits which Plaintiffs claim were affected by Wong have since been issued,” the city states.
It continues, “What is relevant to Plaintiffs’ claims is whether a final discretionary action took place such that they would have been able to demonstrate a vested right to their permits without first obtaining an SMA Permit. What is not relevant to those claims is DPP’s internal communications regarding the various requested permits.”
The companies’ original complaint included claims that they had vested rights to building permits and agricultural and roadway subdivision permits and, therefore, did not need to apply for an SMA permit for further development within the nearly 100-acre condominium project. Last December, U.S. District Judge Jill A. Otake granted the city’s motion to dismiss claims regarding the roadway subdivision and building permits. An amended complaint filed this past summer seeks a court declaration regarding just the roadway and agricultural subdivision permits.
With regard to the requested documents, the city argues that the companies have failed to show how corruption within DPP relates to either the remaining claims or the dismissed claims.
“Since the inception of this case, Plaintiffs have been searching for evidence that they have a vested right to acquire various permits without first obtaining an SMA Permit. It is unlikely that anything outside of official communications from DPP or the City and County of Honolulu to Plaintiffs, would actually be relevant to Plaintiffs’ claims of vested rights. Mr. Wong’s actions did not affect Plaintiffs. In fact, the two permits over which Mr. Wong had any control have since been issued. Defendants are nonetheless attempting to comply with Plaintiffs’ requests and should not be punished for having computer issues, even if it has taken a long time for the issues to be resolved,” the city stated.
The city conceded that because it is a government entity subject to the state’s Sunshine Law, it must comply with disclosure requirements. “This is the reason that Defendants, regardless of the relevancy of Plaintiffs’ requests, are attempting to comply with Plaintiffs’ discovery requests,” the city stated.
Two days before it filed its opposition memo, the city provided the companies with additional responsive documents it was able to recover. City counsel also informed the plaintiffs’ attorneys that even more, which were still under review, would be available by October 31 and that “it appears the additional documents he has received from Defendants constitute a complete production in response to Plaintiffs’ request.”
— Teresa Dawson
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