Subpoenas for personnel records of three OPA investigators stayed

U.S. District Court for the NMI Chief Judge Ramona V. Manglona granted yesterday the U.S. government’s motion to suspend the execution of two subpoenas issued by Rota Mayor Efraim M. Atalig and his girlfriend, Evelyn Atalig, until such time that the court has ruled on the U.S. government’s motion to quash the subpoenas.

In the U.S. government’s motion to quash filed last Wednesday, assistant U.S. attorney Eric S. O’Malley said both subpoenas seek personnel records.

The first is addressed to the Office of the Attorney General’s Criminal Division and seeks the personnel records of Office of the Public Auditor criminal investigator Travis Hurst, O’Malley said. The second is addressed to the Office of the Public Auditor and seeks the personnel records of Hurst, Edward R. Cabrera, and Juan Santos.

He disclosed that Travis, Cabrera, and Santos are criminal investigators for OPA, who participated in the investigation of this case and may testify as witnesses for the U.S. government.

Before joining OPA, Hurst worked briefly for the CNMI Attorney General Investigative Division.

O’Malley said the two subpoenas were served last March 19 and the return date for both was yesterday, March 26, although no trial date is currently set.

O’Malley said OPA Investigation Division participated in the investigation leading to the filing of the criminal case.

In the U.S. government’s motion to stay filed yesterday, O’Malley asked the court to stay the execution of the two subpoenas pending resolution of the government’s motion to quash.

O’Malley said the lawyers for the Ataligs have indicated that they do not oppose a temporary stay.

The prosecutor said the motion to stay should also be granted because there will be no prejudice to the Ataligs.

At present, O’Malley said, there is no date set for trial, and that, due to circumstances relating to the coronavirus pandemic, it is unlikely that the trial will be held anytime soon. “Therefore, there is ample time to fully litigate the issue of the subpoenas,” he pointed out.

The prosecutor argued that the motion to stay should be granted as there would be prejudice to the government’s witnesses.

He said the information sought by the subpoena relates to employee personnel records, disclosure of which may raise privacy issues or reveal information protected by law or confidentiality agreements.

O’Malley said the subpoenas were issued to CNMI agencies and that it was (and still is) unclear whether those agencies had the ability to file a motion without first being admitted to the District Court. He said efforts to obtain the necessary documentation for admission of the OPA attorney have been frustrated by the coronavirus-related shutdowns.

O’Malley said the subpoenas provided an extremely short timeframe—less than one week—in which to respond or to file a motion to quash.

O’Malley said in this case, the U.S. government has an interest in preventing defendants from harassing its witnesses. He said forcing OPA and OAG to comply with this overly-broad subpoena will serve no legitimate purpose.

He said the defendants’ subpoena seeks private information protected by Commonwealth law, the relevant portions of which have been or will be disclosed to the government, and then exchanged during the ordinary course of discovery.

“The subpoena is unreasonable and oppressive and must be quashed,” the prosecutor said.

O’Malley said if the court determines the subpoenas are enforceable, the government requests that the court review the records to ascertain what portion, if any, should be disclosed to defendants and to protect the remainder of the confidential or private information.