‘Federal govt used Rep. Sablan in lawsuit’

The federal government has used Rep. Tina Sablan in defending itself from the CNMI government’s lawsuit against federalization, according to a CNMI government lawyer.

Braddock J. Huesman, counsel for Gov. Benigno R. Fitial and Finance Secretary Eloy Inos in Sablan’s lawsuit, said it is clear that the federal government has already attempted to use Sablan in an effort to gain an upper hand in the litigation against federalization.

He said that forcing the CNMI to release sensitive information which the federal government is not entitled to contravenes the purpose of a law that exempts some documents from the Open Government Act.

Huesman cited a footnote in the U.S. government’s motion to dismiss the CNMI lawsuit about Sablan’s efforts to ask for certain documents from Fitial related to the federalization lawsuit.

In that footnote, the U.S. government stated that Sablan, a member of the CNMI House of Representatives and a member of the CNMI House Committee on U.S. and Foreign Relations, raised an issue concerning the legal authority of the Fitial administration to file its federalization lawsuit.

Huesman said the public records being requested by Sablan are either protected by attorney-client privilege or they are not relevant for discovery purposes. He asked the court to deny Sablan’s request.

Sablan filed the lawsuit against Fitial, Inos, and acting Attorney General Gregory Baka to compel the administration to disclose where it is getting the money to fund the lawsuit against federalization. The Superior Court recently removed Baka from the lawsuit.

The congresswoman asked the court to issue an order mandating Fitial and Inos to fulfill their obligations under CNMI law by making available the requested materials within 48 hours of the court’s decision.

Sablan asserted that the refusal of the defendants to disclose records identifying funding sources and contracts connected to the federalization lawsuit that has been filed on behalf of the CNMI people is a violation of the OGA.

In Fitial’s and Inos’ motion to withhold documents, Huesman said public records are exempt from disclosure by the plain language of the OGA if they are relevant to a controversy to which the government is a party and would not be available to an adverse party under pretrial rules.

“In the case at bar, all documents are exempt either due to attorney-client privilege or because they are not currently discoverable in the…litigation,” he said.

Huesman said the documents requested are completely exempted by the OGA because they are not obtainable as courtroom discovery due to the attorney-client privilege or because they will not lead to the discovery of relevant evidence.

The lawyer said Fitial and Inos admit that it is generally recognized that the communication of factual information is not protected by the attorney-client privilege, and thus, fee or retainer agreements are generally not privileged.

“Moreover, the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege,” he said.

However, Huesman pointed out, the information contained in such documents may still be found to be confidential.

He said remaining portions of the retainer agreement, contracts, and billing statements along with any documents and all records indicating payment of attorneys’ fees are irrelevant for discovery purposes but relevant to the litigation.

Huesman asked the court to allow the documents to be withheld for OGA purposes until the conclusion of the lawsuit.