Attorney’s defiant posture toward discovery rules causes case to be dismissed


The Trial Division of the High Court has dismissed with prejudice a lawsuit brought by Nikolao, Adrienne and Alton Fa’asala after then Fire Chief Cliff O’Brien allegedly crashed a government vehicle into their private vehicle when the plaintiffs were in their car in January 2009.

The plaintiffs claimed compensation for negligence against O’Brien for medical damages, negligence against ASG for medical damages, negligent infliction of emotional distress and the loss of the vehicle against the defendants.

The plaintiffs are represented by attorney Mark Ude. The defendants named in this lawsuit filed in January 2009, were then Fire Chief Cliff O’Brien and the American Samoa Government, who is represented by Assistant Attorney General Michael Iosua.

The order issued on Tuesday was signed by Chief Justice Michael Kruse, Chief Associate Judge Logoai Siaki and Associate Judge Fa’amausili Pomele.

The five page order states that on Jan. 16, 2009 O’Brien, then Fire Chief, allegedly crashed a government vehicle into a vehicle owned by the plaintiffs and the plaintiffs were all present in the vehicle at the time of the crash.

“This order however, does not implicate the claims for relief requested in the complaint but rather concerns the third set of discovery requests that were propounded on plaintiffs.”

“At the outset, we note that we have previously issued a direct contempt for (1) including this court in an unwarranted discovery-dispute (2) disobeying a court-order compelling the production of evidence and (3) flagrantly attempting to mislead this court about a previous court-order that plaintiff’s counsel knew or should have known.

“The contempt order concerned the second set of discovery requests filed on September 27, 2011. For more than four months, plaintiff’s counsel avoided providing ASG with the requested relevant documents,” says the order.

The order further says, a hearing was held on Nov. 21, 2011 and Ude informed the court that they could provide the requested documents by Nov. 28, 2011, however Ude then failed to produce those documents and denied in open court that the court had ever issued such an order.

On Jan. 13, 2012 the government filed a motion to compel, which the court granted, and included the direct contempt order and warned Ude with more severe sanctions including dismissing this matter with prejudice.

Earlier in Aug. 22, 2012 plaintiffs requested an extension and the government agreed to extend the deadline to Sept. 21, 2012 however on that day the plaintiffs requested another extension until the 24thof the same month, to which the government agreed.

Come Sept. 24, 2012 plaintiff Adrienne responded to the interrogatories, but provided no responsive documents while plaintiff Nikolao and plaintiff Alton did not provide any answers or responsive documents.

Ude claimed that Alton was not required to serve any responses because he’s in the military and protected by the Service-members Civil Relief Act (SCRA).

According to the order, on Oct. 1, 2012 Ude discovered Nikolao’s interrogatory responses in his possession and the government allowed additional time to serve the responses so that plaintiffs could provide complete written responses and documents. According to the order, the government filed a second motion to compel in Oct. 9, 2012 averring issues that are “vexingly similar to the issues stated in its first motion to compel” and the government issued its third set of discovery requests, including several requests for production of documents and eight interrogatories that were filed earlier.

However Ude served plaintiff Nikolao’s interrogatory responses and did not provide any responsive documents. Furthermore, the plaintiffs ultimately objected to the government’s request for medical records and provided the government with the HIPPA authorization forms instead.

HIPPA is the Health Insurance Portability and Accountability Act of 1996. HIPAA Privacy and Security Rules protect the privacy of individually identifiable health information; the HIPAA Security Rule sets national standards for the security of electronic protected health information; and the confidentiality provisions of the Patient Safety Rule protect identifiable information being used to analyze patient safety events and improve patient safety.


The court says based on the foregoing record the court finds that plaintiffs have woefully failed to respond to the third set of discovery requests, and therefore the plaintiff’s case is dismissed for unreasonably failing to comply with discovery rules.

Ude’s flagrant disregard for the court’s order was also cited, and the dismissal shall be with prejudice for the following reasons. The record in this case shows a pattern of discovery abuses by plaintiff’s counsel (Ude) some of which are highlighted in the contempt order issued earlier.

In August of last year the court fined Ude $300 after he failed to produce medical bills, psychiatric bills, physical therapy and other bills for all services that were provided for the plaintiffs which had been requested by ASG late last year.

The court found Ude in contempt and sentenced him to a fine of $500 for including the court in an unwarranted discovery-dispute that should have been addressed, for disobeying a court-order demanding production of evidence, and flagrantly attempting to mislead the court about a previous court-order that he knew or should have known about.

The court also ordered that Ude shall not charge his clients for defending ASG's motion to compel, nor shall he charge his clients to share in paying for sanctions the court has issued, and he shall bear the sanctions alone.

“Not only did plaintiff’s counsel request extension after extension while failing to produce responsive documents and responses to interrogatories, plaintiff’s counsel continued a pattern of disobeying the court’s orders.”

“This court previously made it clear that when a named defendant requests relevant medical psychiatric bills that are within the plaintiff’s control, the plaintiff must produce the actual documents, not a HIPAA consent or authorization form.

“In addition, although plaintiff Alton may conceivably be covered under the SCRA (Service-members Civil Relief Act) which allows a stay of civil court, proceedings for active duty service-members, plaintiff’s counsel did not file a motion to stay proceedings and did not follow the procedures for effectuating a stay as required by the SCRA,” says the court order.

The court says the foregoing conduct makes is clear that plaintiff’s intended to pursue litigation against the defendants without giving them a meaningful opportunity to defend their case.

“Again, we find our resources being wasted in having to deal with plaintiff’s counsel’s defiant posture toward discovery rules. Accordingly, we have no qualms in dismissing the case with prejudice,” the court order states.


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