SUPERIOR OF GUAM tfi. - TownNews

MAURICE SUH ([email protected]) . FILE·O

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JAY SRINIVASAN [email protected]) GIBSON, DUNN& CRUTCHER LLP

SUPERIOR COURT OF GUAM

333 South Grand Ave. Los Angeles, CA 90071 Tel: (213) 229-7260 Fax: (213) 229-6260

5 G. PATRICK CIVILLE ([email protected]) JOYCE C.H. TANG [email protected])

6 CIVILLE & TANG, PLLC Suite 200, 330 Heman Cortez Ave.

7 Hagatfia, GU 96910 Tel: (671) 472-8868

8 Fax: (671) 477-2511

9 Attorneys for Plaintiff DFS Guam L.P.

2tH9 JUN 26 ftH a tfi. CLERK OF COURT

By:....._ _____ _

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SUPERIOR COURT OF GUAM HAGATNA, GUAM

DFS GUAM L.P.,

Plaintiff,

v.

THE A.B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM

Defendant.

DFSv.GIAA, Civil Case No. CV0307-16 Superior Court of Guam

CIVIL CASE NO. CV0307-16

DFS GUAM L.P.'S RESPONSE TO DEFENDANT ANTONIO B. WON PAT INTERNATIONAL AIRPORT AUTHORITY, GUAM'S RESPONSE TO THE COURT'S ORDER TO SHOW CAUSE FILED MAY 14, 2019

RECEIVED CALVO FISHER & JACOB LLP

Date: \.Q ld..lo\Jq Time: l\1ffl1( \\:I~ By:_~~!oL---·--

1 I. INTRODUCTION

2 This Court has ordered Defendant the A.B. Won Pat International Airport Authority

3 ("GIAA'') to show cause why it should not be held in contempt for making a material

4 misrepresentation to the Court. GIAA has failed to do so. Critically, GIAA's Response to the

5 Court's Order to Show Cause Filed May 14, 2019 ("Response") provides no coherent explanation for

6 why it did not disclose to the Court that (a) DFS had requested a copy of transcript for the April 26,

7 2019 executive session of GIAA's Board of Directors ("April 26 Transcript") and (b) GIAA failed to

8 produce the April 26 Transcript to DFS despite the fact that the six-month automatic seal period in

9 the Open Government Law ("OGL") had expired. GIAA's feigned ignorance about what information

10 it should have disclosed to the Court to ensure full disclosure is simply not credible and the Court

11 should reject it.

12 Rather than answer that basic, dispositive question, GIAA presents a series of distractions.

13 For instance, GIAA offers numerous arguments why it believes it was acting in good faith and

14 relying on a colorable legal position that it could withhold the April 26 Transcript. But the Court's

15 May 14, 2019 Order to Show ("May 14 Order to Show Cause") was not based on the frivolousness of

16 GIAA's legal position. Rather, it was based on GIAA's lack of candor in misrepresenting to the

17 Court that it was in compliance with the Open Government Law ("OGL"), along with the failure to

18 disclose critical facts related to the April 26 Transcript that would have undermined GIAA's false

19 representation. GIAA's myriad assertions about why it believed it was in compliance with the

20 OGL-even if true-do not give GIAA a free pass for a lack of candor to the Court.

21 Moreover, the foundation of GIAA's good-faith argument is demonstrably false. GIAA's

22 representation that it was in compliance with the OGL could not have been based on its interpretation

23 that the initial six-month seal period in the OGL began upon the receipt of the executive session

24 transcript, rather than the date of the meeting itself. This is because weeks after GIAA made that

25 representation, it stated to the Honorable Michael Bordallo that the initial six-month seal period

26 began as of the date of the executive session meeting. Thus, GIAA' s current purported interpretation

27 of the OGL is in reality a ginned up; post-hoc legal argument to try to justifyits previous

28 (mis)representation to the Court.


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1 In short, as this Court has already determined, GIAA made a material misrepresentation when

2 it unequivocally stated that it was in compliance with the OGL without disclosing the circumstances

3 and issues related to the April 26 Transcript. GIAA offers neither contrition nor justification for its

· 4 lack of candor in failing to provide material information to this Court. Instead, GIAA takes a strident

5 tone, doubling down on its misrepresentation and laboring to create ambiguity where there is none.

6 The Court should find GIAA in contempt and sanction GIAA by ordering GIAA to produce to DFS

7 the April 26 Transcript.

8 II. FACTUAL AND PROCEDURAL IDSTORY

9 On December 4, 2018, GIAA submitted a Second Report of Compliance with Open

10 Government Law Pursuant to 5 GCA § 8115(f) (the "Compliance Report"), signed by its counsel.

11 GIAA stated unequivocally in the Compliance Report that "it is in compliance with 5 GCA

12 § 811 l(c)(7) in connection with requests made under the Sunshine Reform Act of 1999."

13 Compliance Report at 1.

14 DFS objected to the Compliance Report on December 14, 2018, and also moved for an order

15 to show cause why GIAA should not be held in contempt for misrepresenting that it complied with

16 the OGL when it had not in fact been in compliance (the "OSC Motion"). GIAA filed a written

17 opposition to DFS's OSC Motion (the "OSC Opp.") on January 11, 2019. In the opposition GIAA

18 presented substantive arguments for why it believed the Court should not issue an order to show

19 cause-in particular, GIAA argued the merits of whether it had made a material misrepresentation to

20 the Court. OSC Opp. at 3-8. DFS submitted a reply brief in support of its OSC Motion on January

21 25, 2019.

22 The Court heard the OSC Motion on February 14, 2019. During that hearing, counsel for

23 GIAA argued that it did not make a material misrepresentation to the Court. Declaration of G.

24 Patrick Civille, Ex. A at 12:22-25:9 (June 26, 2019).

25 The Court granted DFS's OSC Motion in the May 14 Order to Show Cause, which complied

26 with 7 GCA § 34102(b) by setting forth "the essential facts constituting the contempt charged and

27 describe[d] it as such." Namely, the Court found that "GIAA had an affirmative duty to ensure the

28 production of the April 26 Transcript, and compliance with the OGL was not impossible," and GIAA


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1 made a material representation regarding its compliance with the OGL because GIAA failed to

2 "inform[ ] the Court that the April 26 Transcript had not been released over six months after the

3 meeting." May 14 Order to Show Cause, at 8. The Court found that the proper sanction would be an

4 order requiring the release of the April 26 Transcript. Id. at 8-9. Based on these findings, the Court

5 ordered "GIAA to appear and show cause why it should not be held in contempt," and set a hearing

6 on the OSC for June 27, 2019 at 10:30 a.m. Id. at 9.

7 On May 29, 2019, GIAA filed a reconsideration motion and a stay motion. Both of those

8 motions are based on the assertion that the Court's May 14 Order to Show Cause had already found

9 GIAA in contempt and required GIAA to produce the April 26 Transcript. GIAA' s Mot. to

10 Reconsider Court's May 14, 2019 Decision & Order, at 1, 5 (May 29, 2019); GIAA's Mot. to Stay

11 Enforcement of Court's May 14, 2019 Decision & Order, at 2 (May 29, 2019).

12 On June 12, 2019, the Guam Supreme Court vacated this Court's previous judgment in this

13 proceeding. See In re A.B. Won Pat Int'l Airport Auth., 2019 Guam 6 <J[ 54. In its opinion, the

14 Supreme Court found that a trial court cannot re-seal under 7 GCA § 8111 ( c )(7) a transcript of an

15 executive session transcript once the initial six-month seal period has lapsed. Id. <J[<J[ 34, 42. The

16 Court further held that disclosure of the public executive session transcripts were subject to the

17 Sunshine Act and the statutory exemptions contained therein. Id. <J[<J[ 43, 45. Specifically, the Court

18 held that "[o]nce a transcript has become an unsealed 'public document' under section 811 l(c)(7), the

19 transcript may nevertheless be exempt from disclosure if it 'pertain[s] to pending litigation to which

20 the agency is a party." Id. <J[ 49 (emphasis added); see also <J[ 53 ("We find that the trial court erred;

21 the Sunshine Act permits GIAA to temporarily withhold executive session transcripts if they

22 'pertain[] to pending litigation' and until such time as that litigation concludes."). Importantly,

23 however, the Court did not set forth the standard that a trial court should use when determining if an

24 executive session transcript "pertains to pending litigation," or otherwise define the scope of the

25 pending-litigation exemption.

26 On June 24, 2019, three days before the show cause hearing, GIAA filed its Response.

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III. ARGUMENT

The Court Should Strike GIAA's Response Because It Is Not Authorized By Statute Or This Court's Order To Show Cause.

4 The Court should strike GIAA' s Response as procedurally deficient because neither the Court

5 nor Guam's contempt statute authorize the filing of such a brief.

6 The May 14 Order to Show Cause set a hearing on June 27, 2019; it did not request or

7 otherwise authorize GIAA to file a brief in advance of that hearing. Likewise, nothing in Title 7

8 GCA § 34102 authorizes GIAA to file a brief before a show cause hearing. GIAA's unilateral

9 decision to file a brief without seeking permission from the Court for leave to do so is not proper-

10 especially when GIAA has already filed two separate motions (Motion to Reconsider and Motion for

11 Stay) purporting to address the issues in the show-cause hearing.

12 What is more, GIAA offers no explanation for why it waited more than forty days after the

13 Court issued its May 14 Order to Show Cause-and just three days before the hearing itself-to file

14 its unauthorized Response. This delay and resulting prejudice to DFS to review and file a response

15 on very short notice further justifies the Court striking GIAA's improper filing.

16 B. The Supreme Court's Recent Opinion Does Not Moot The Show Cause Hearing.

17 GIAA argues that as a result of the Supreme Court's recent opinion, "the entire premise on

18 which the Contempt Order was based no longer exists" and that "there is no longer any basis for the

19 Court to hold GIAA in contempt or to sanction GIAA for withholding confidential attorney-client

20 communications pertaining to pending litigation." Response at 1, 2. GIAA is wrong. The Supreme

21 Court's decision does not change this Court's determination that GIAA made a material

22 misrepresentation to the Court.

23 The May 14 Order to Show Cause is based on GIAA's counsel's lack of candor to the Court

24 by not informing it of all the circumstances related to DFS's request for the April 26 Transcript and

25 GIAA's refusal to provide it to DFS. For instance, the Court stated that "the question before the

26 Court in this contempt matter is not whether it was impossible for GIAA to comply with the OGL,

27 but instead whether it was impossible for GIAA to inform the Court that it was not in compliance

28 with the OGL." May 14 Order to Show Cause at 8. The Court then stated that "[r]egardless of the

DFSv. GIAA, Civil Case No. CV0307-16 Superior Court of Guam

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1 underlying reasons for noncompliance, GIAA was capable of informing the Court that the April 26

2 Transcript had not been released over six months after the meeting, but instead chose to file a

3 misleading compliance report." Id. GIAA and its counsel's lack of candor is measured based on the

4 circumstances that existed at the time. Because the Supreme Court's decision was not issued until

5 months after GIAA made its material misrepresentation in the Compliance Report, that decision can

6 have no bearing on whether this Court should hold GIAA in contempt.

7 In any event, GIAA's statement in the Compliance Report remains false even after the

8 Supreme Court's recent decision. Contrary to GIAA's mischaracterization, the Supreme Court never

9 "held that GIAA properly withheld the executive session transcripts discussing pending litigation

10 pursuant to the Sunshine Act." Response at 2. Rather, the Supreme Court held that GIAA could

11 withhold the executive session transcripts if they pertain to pending litigation. i::~e Supreme Court

12 did not opine on whether any particular transcript actually pertained to pending litigation, and,

13 certainly, the Court did not hold or even suggest that the April 26 Transcript pertained to pending

14 litigation.

15 In fact, the April 26 Transcript does not pertain to pending litigation-as GIAA's own

16 representations to this Court mere weeks ago make clear. The pending litigation exemption in the

17 Sunshine Act protects "[r]ecords pertaining to pending litigation to which the agency is a party, until

18 the pending litigation has been finally adjudicated or otherwise settled." 5 GCA § 10108(a). In its

19 Stay Motion, GIAA unequivocally represents that at least part of the April 26 Transcript involved a

20 discussion about a dispute between GIAA and Lotte: "[o]n April 26, 2018, the GIAA Board held a

21 closed executive session to discuss litigation matters threatened and pending involving GIAA,

22 including a 'Dispute with Lotte Duty Free Guam, LLC." Stay Motion at 7 (emphasis added). A few

23 pages later, GIAA represented that "[t]he April 26 Transcript discussed an ongoing dispute that arose

24 between GIAA and Lotte as a result of Judge Barcinas voiding GIAA' s contract with Lotte" and that

25 "[s]pecifically, Lotte had threatened to leave the Airport and/or refuse to pay rent, which would have

26 caused GIAA to lose 18.75% of its overall revenue overnight, force GIAA to suspend much needed

27 capital improvements, including the $120 million Third Floor Project, result in a technical breach of

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1 its $247 million Bond Indenture, and cause Signatory Airlines to pay more in airline fees to make up

2 for the lost revenue." Id. at 11.

3 There is no pending litigation between GIAA involving any dispute with Lotte. Thus, by

4 definition, the pending litigation exemption does not and cannot apply to the April 26 Transcript. In

5 other words, GIAA's representation in its Compliance Report that it had complied with the OGL

6 remains a material representation.

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GIAA Should Be Held In Contempt For Its Material Misrepresentation.

1. GIAA's Lack Of Candor To The Court Supports A Finding Of Contempt.

9 The Court's contempt authority is pursuant to statute, 7 GCA § 34101, et. seq, which provides

10 that contempt of court includes any "misbehavior in office, or other wilful neglect [sic] or violation of

11 duty by an attorney, counsel, clerk, commissioner, or other person, appointed or elected to perform a

12 judicial or ministerial service" or "[a]buse of process or proceedings of the court, or falsely

13 pretending to act under authority of an order or process of the court." 7 GCA § 3410l(a)(3), (4). The

14 Guam Supreme Court has observed that "[a]rtful advocacy should not border on misrepresentation;

15 such actions are in themselves contemptuous." People v. Tennessen, 2010 Guam 12, <J[ 4 n.3. The

16 Court has also noted that a litigant "walks on the razor's edge of a separate contempt proceeding for

17 making what appear to be deliberately misleading arguments bordering on misrepresentation."

18 People v. Tennessen, 2011Guam2 <J[ 30 n.12.

19 The Supreme Court's guidance is consistent with the California Supreme Court's

20 interpretation of California's own contempt statute, Section 1209 of the California Civil Procedure

21 Code, upon which Guam's contempt statute is based. Critically, the California Supreme Court has

22 made clear that a lack of candor to the court constitutes contemptuous act: "It is, of course, an

23 extremely serious breach of an attorney's duty to a court to lie in statements made to the court ... and

24 an intentionally false statement made by an attorney to a court clearly constitutes a contempt of

25 court." In re Aguilar, 34 Cal. 4th 386, 394 (2004); see also In re Ciraolo, 70 Cal.2d 389, 394 (1969).

26 It cannot be questioned that an attorney's filing of a brief containing statements known to be false, or

27 with disregard as to their truth or falsity, is contemptuous, as is any other attempt to deceive a court.

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1 2. GIAA Was Not Forthright And Transparent With The Court.

2 GIAA now argues that it "has been completely forthright and transparent with ... the Court at

3 every stage and has not attempted to conceal any public information or mislead the Court in any

4 way." Response at 3. This is demonstrably wrong.

5 At the time GIAA filed its Compliance Report, the Court's June 26, 2017 Decision and Order ,

6 ("June 26 Decision") expressly found that if the agency (here, GIAA) does not request a seal prior to

7 the expiration of the six-month period, the transcript becomes public as a matter of law, and the

8 agency cannot refuse to disclose the document under the exemptions of the Sunshine Act.1 In its

9 Compliance Report, however, GIAA unequivocally represented to the Court that it was in compliance

IO with the OGL, despite the fact that it had been more than six months from the date of the executive

11 session meeting and no further sealing order was in place. GIAA should have, but did not, disclose

12 that DFS had requested the April 26 Transcript and that GIAA had withheld it based on unstated self-

13 serving and novel interpretations of the OGL. Had GIAA disclosed those facts and circumstances

14 related to the April 26 Transcript, the Court could have independently analyzed GIAA's compliance

15 with the OGL. Instead, GIAA tried to keep the Court in the dark, requiring DFS to bring the April 26

16 Transcript issue to the Court's attention. That DFS had to do so-and that the Court ultimately

17 disagreed with GIAA' s interpretations-demonstrates that GIAA failed to disclose material

18 information to the Court.

19 GIAA's lack of candor is particularly troublesome because the Compliance Report was a non-

20 adversarial filing informing the Court about GIAA's compliance with the OGL. It was not an

21 advocacy brief, in which a party may advocate colorable positions to the Court, and, as a result, there

22 should be a heightened duty to be completely transparent with the Court. Thus, particularly in this

23 context, GIAA's incorrect statement crosses the line from "artful advocacy" to a contemptuous

24 misrepresentation.

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The fact that the latter holding was recently reversed by the Supreme Court, see DFS v. GIAA, 2009 Guam 6, 'lI 49, is of no import. At the time of GIAA's Compliance Report, GIAA was representing that it was in compliance with the OGL as interpreted by this Court.


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1 GIAA also asserts that it was forthright and transparent with DFS in that it informed DFS

2 "about the existence and status of the transcript." Response at 3. But that only makes GIAA's failure

3 to inform the Court about the existence and status of the April 26 Transcript all that more

4 troublesome. GIAA should have informed the Court, like it did DFS, about the existence and status

5 of the April 26 Transcript rather than making a material misrepresentation to the Court by

6 unequivocally stating that GIAA was in compliance with the OGL when there were at least

7 circumstances present that seriously undermined that representation.

8 Further, GIAA's self-serving proclamation that it "produced all information 'relevant' to the

9 public, including DFS, with respect to the discussion contained in the April 26 Transcript" is

10 meritless and immaterial. Response at 4. Whether or not GIAA produced all information it now

11 deems relevant does not change the fact that GIAA' s statement in the Compliance Report was a

12 material misrepresentation. And notwithstanding GIAA's public statements about the topics

13 discussed during the April 26, 2018 executive session, it is certainly "relevant" to the public to know

14 whether GIAA's public statements are consistent with its behind closed door discussions or if GIAA

15 is making material misrepresentations to the public as well.

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3. GIAA's Representation In Its Compliance Report Could Not Have Been Based On Its Purported Good-Faith Interpretation Of When The Seal-Period Began.

18 GIAA also argues that it should not be held in contempt because its representation to the

19 Court was based on a good-faith interpretation of an ambiguous statute and was colorable. But this

20 misses the point. The May 14 Order to Show Cause is based on GIAA's lack of candor to the Court

21 in failing to disclose the circumstances related to the April 26 Transcript-there is no finding that

22 GIAA' s underlying position is frivolous. Whether GIAA's interpretation of the OGL was colorable

23 or in good faith, GIAA was duty bound to make a full and complete disclosure to the Court of the

24 April 26 Transcript issue-including any purported ambiguities in the OGL, particularly when GIAA

25 now admits that it had unilaterally interpreted the statute in its own favor so that it could self-

26 servingly assert that it was in compliance with the OGL. Thus, even if GIAA' s interpretations are

27 colorable, GIAA' s failure to disclose the April 26 Transcript issue justifies the Court finding it in

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1 In any event, it is also provably false that GIAA's representation in the Compliance Report

2 was based on a good-faith interpretation of the OGL that the initial seal period began when the

3 transcript was received by GIAA. As this Court already found, weeks after filing the Compliance

4 Report, "GIAA represented to Judge Bordallo in a filing in SP0102-15 [that] ... 'Under Section

5 81 ll(c) of the Open Government Law the Transcripts are automatically sealed for six months.from

6 the date of the respective meeting to protect attorney client privileged communications .... " May 14

7 Order to Show Cause at 5 (citation to record omitted). Because GIAA made this statement to Judge

8 Bordallo after the filing of the Compliance Report, there can be no credible dispute that at the time it

9 filed the Compliance Report, GIAA believed that the initial seal period began on the date of the

10 meeting. Thus, GIAA purported good-faith and colorable interpretation of the OGL is simply apost-

11 hoc effort to justify its wrongdoing and could not have been the actual basis for GIAA's

12 representation to the Court that it was in compliance with the OGL.

13 GIAA also asserts that its statement to Judge Bordallo was merely "a general restatement of

14 the statute in a completely different context where there were no questions about an absent transcript,

15 where the question of when the seal began was not an issue, and where the issue was not fully

16 researched or fleshed out by the parties." Response at 8. Even if all that were true, GIAA's

17 purported conclusion about when the initial seal period begins must have been made after GIAA

18 submitted its Compliance Report, otherwise GIAA would not have represented to JudgeBordallo that

19 the initial seal period began as of the date of the meeting. GIAA therefore cannot rely on after-the-

20 fact interpretation of the OGL' s sealing provision to justify its material misrepresentation to the

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4. GIAA's Positon That This Court Must Make A Finding That GIAA Violated A Court Order Or That It Acted In Bad Faith Is Not Supported By Authority.

24 GIAA next argues that it should not be held in contempt because the Court never explained

25 what information needed to be in the compliance report and the Court had not previously ruled on

26 when the initial six-month seal period began. Response at 5, 7. But the May 14 Order to Show

27 Cause is not based on a failure to comply with a court order-for example, failure to comply with an

28 injunction-or a finding that GIAA violated the Court's interpretation of the OGL. Instead, as noted


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1 above, the May 14 Order to Show Cause stems from counsel for GIAA making a material

2 misrepresentation to the Court. GIAA's and its counsel's obligation of due candor to the Court exists

3 without any prior order and, even without this Court detailing and defining the specific content of the

4 Compliance Report, GIAA should have known on its own that it was required to disclose the April 26

5 Transcript issue.

6 GIAA also argues that the Court must make a finding of bad faith before it can sanction a

7 party for the actions of its attorney. Response at 3-4. Unlike this case, however, GIAA's cited

8 authority does not involve contempt findings based on a contempt statute, and there is no bad faith

9 requirement for a finding of contempt based on lack of candor to the Court under Guam's contempt

10 statute. See 7 GCA §34101. The cases cited by GIAA for its proposition that there must be a finding

11 of "bad faith" involved contempt based on the court's inherent powers, and they are inapposite

12 because each discussed the requirement of bad faith before awarding attorney's fees under the 'bad

13 faith exception to the 'American Rule."' Milltex Industries Corp. v. Jacquard La.ce Co., Ltd., 55 F.3d

14 34, 37-38 (2d Cir. 1995) ("It is settled law that a court may impose attorney's fees under its inherent

15 power as a penalty for misconduct during the course of litigation .... Our Circuit has characterized

16 this exercise of power as the bad faith exception to the 'American Rule."') (citation omitted); see U.S.

17 v. Seltzer, 227 F.3d 36, 40, 2000 WL 1375576 (2d Cir. 2000) (rejecting the argument that bad faith is

18 always required before a court may impose sanctions under its inherent powers, and observing that in

19 the prior cases requiring a bad faith finding "we have considered whether bad faith is required when a

20 court imposes attorney's fees as a sanction, or when the court sanctions an attorney for conduct that is

21 integrally related to the attorney's role as an advocate for his or her client") (citing cases involving

22 the imposition of attorney's fees). Nor does GIAA address why the Court should follow these non-

23 Guam authorities where the Guam contempt statute does not require a finding of bad faith and the

24 Supreme Court's statements in the Tennesson line of cases does not suggest that such a bad faith

25 finding is necessary.

26 Regardless, GIAA' s material misrepresentation to the Court in the Compliance Report was in

27 bad faith. GIAA either knew or should have known that DFS disputed GIAA's basis for withholding

28 the April 26 Transcript. Yet, GIAA has offered no explanation for why it did not disclose the issue

DFSv. GIAA, Civil Case No. CV0307-16 Superior Court of Guam

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1 related to the April 26 Transcript in the Compliance Report. While GIAA offers many reasons for

2 why it believes that its representation was made in good faith, they all miss the mark because they do

3 not justify GIAA's failure to disclose the issue related to the April 26 Transcript in the first instance.

4 For instance, GIAA argues that it believed Judge Bordallo would seal the transcript in the

5 future. GIAA's belief about what Judge Bordallo would do in the future have no bearing on the

6 veracity of GIAA's representation in the Compliance Report, because the transcripts were

7 indisputably not sealed at the time of DFS 's request or when GIAA filed the Compliance Report. But

8 even if that is what GIAA believed at the time, GIAA does not just explain why it did not disclose

9 this purported belief in the Compliance Report.

10 GIAA also asserts that it did not act in bad faith because it "has no motive or desire to 'hide'

11 any information from this Court and was not trying to do so," id. at 5, and GIAA did not benefit from

12 or gain any advantage "from the extended delay in receiving the certified transcripts," id. at 6. If

13 GIAA had no reason to "hide" anything, it could have easily reported the fact that the April 26

14 Transcript had not been promptly reduced to writing in its Compliance Report. This argument also

15 fails because GIAA would have benefited from its lack of candor had DFS not filed an objection.

16 That is, GIAA would have successfully mislead the Court into believing that it had complied with the

17 OGL when it in fact was not in compliance.

18 Moreover, the Court has already correctly determined that GIAA acted in bad faith when it

19 submitted its Compliance Report. GIAA argued to the Court that it's actions with respect to the April

20 26 Transcript were undertaken in good faith based on evidence of its counsel's communications with

21 the Court Reporter. GIAA's Opposition to OSC Motion at 5. The Court rejected this and found that

22 "[a] government agency acting in good faith would have repeatedly reminded the court reporter that

23 the transcript was needed." May 14 Order to Show Cause at 9. The Court found that "GIAA

24 contacted the court reporter only one time in the nearly seven-month period between the April 26

25 Session and DFS's first request for the transcript of such meeting," and that "GIAA's lack of due

26 diligence and candor was a deliberate strategy to avoid compliance with the OGL." Id. Thus, the

27 Court has made the requisite finding of bad faith to support its order to show cause why GIAA should

28 not be held in contempt.


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1 The new evidence that GIAA submits showing additional emails from CFJ's legal assistant to

2 the Court Reporter George Castro does not change this conclusion. The emails show that after CFJ

3 sent a follow-up email to Mr. Castro on July 25, 2018, GIAA waited nearly four months before

4 following up again, and it did so more than six months after the April 26 meeting and only after DFS

5 requested the transcript in DFS's November 20, 2018 Sunshine Act request. Deel. of Jaime C.

6 Peightal, Ex. C (Jun. 24, 2019).

7 IV. CONCLUSION

8 For these reasons, the Court should find GIAA in contempt based on its lack of candor in its

9 Second Report and order GIAA to produce the April 26 Transcript to DFS.

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Respectfully submitted this 26th day of June, 2019.

DFS v. GIAA, Civil Case No. CV0307-16 Superior Court of Guam

:;;~G,e~ G. PATRICK CIVILLE

Attorneys for Plaintiff DFS Guam L.P.

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