Tandal v. Marriott International, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-FEB-2024
07:52 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

KRISTIN TANDAL, KATHERINE MADDEN, DAWN LELEO-RODRIGUES, KELE
MANGUCHEI, LISA JOYCE FOOTE, and TAMARA INMANN, individually and
on behalf of all others similarly situated, Plaintiffs-Appellees,
v.
MARRIOTT INTERNATIONAL, INC.; ESSEX HOUSE CONDOMINIUM
CORPORATION, Defendants-Appellees; ALAN GALLARDO GANIR, an
individual, Defendant-Appellant; and DOE DEFENDANTS 1-50,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC181000139)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.)

Alan Gallardo Ganir appeals from the interlocutory
"Order Granting Plaintiffs' Motion for an Order Compelling
Discovery and for Fees and Sanctions Against Defendant Alan
Gallardo Ganir" entered by the Circuit Court of the Fifth Circuit
on July 12, 2019.1 We have jurisdiction over the part of the
Order awarding attorneys fees as sanctions only. Harada v.
Ellis, 60 Haw. 467, 480, 591 P.2d 1060, 1070 (1979). We reverse
the award, paragraph 9 of the Order.
The complaint below alleges that Ganir used his iPhone
to film the plaintiffs in their workplace women's locker room.

1
The Honorable Randal G.B. Valenciano presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Plaintiffs served discovery requests. Ganir served responses.
Counsel met and conferred about the sufficiency of Ganir's
responses. Plaintiffs moved to compel discovery and asked for
sanctions. On July 12, 2019, the circuit court ordered that
Ganir comply with certain discovery requests and pay $9,001.04 of
Plaintiffs' attorneys fees within 30 days, under penalty of
contempt. Ganir appeals.
We review the award of discovery sanctions for abuse of
discretion. Aloha Unlimited, Inc. v. Coughlin, 79 Hawai#i 527,
532–33, 904 P.2d 541, 546–47 (App. 1995). We also review the
award of attorney fees for abuse of discretion. Gailliard v.
Rawsthorne, 150 Hawai#i 169, 175, 498 P.3d 700, 706 (2021).
Rule 37(a)(4)(A) of the Hawai#i Rules of Civil
Procedure (HRCP) requires that a court granting a motion to
compel discovery award attorney fees to the moving party unless
"the opposing party's nondisclosure, response, or objection was
substantially justified[.]" "A good faith dispute concerning a
discovery question can, in a proper case, constitute 'substantial
justification' for refusing to give discovery." Fujimoto v. Au,
95 Hawai#i 116, 167, 19 P.3d 699, 750 (2001) (citations omitted).
We take judicial notice that the criminal case against
Ganir arising out of the conduct alleged in Plaintiffs' complaint
was pending while the discovery dispute was being litigated.2
The discovery dispute arose because Ganir asserted his Fifth
Amendment right against self-incrimination. Plaintiffs argued
that Ganir's Fifth Amendment right didn't apply to their
discovery requests, which they maintained required non-
testimonial responses. Ganir argued that the discovery requests
were worded so that by responding, he would be admitting facts
that the State had the burden to prove in his criminal case. He
had pleaded no-contest in his criminal case but argued —
correctly — that his Fifth Amendment privilege could be asserted

2
State v. Ganir, JIMS Nos. 5DCW-XX-XXXXXXX and 5CPC-XX-XXXXXXX.
Counsel representing Ganir in this case also represented Ganir in 5CPC-18-
0000233.

2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

"until sentencing," which had not happened when the motion to
compel was heard. See Mitchell v. United States, 526 U.S. 314,
326 (1999) (concluding that defendant retains Fifth Amendment
right until "the sentence has been fixed and the judgment of
conviction has become final"). He offered to supplement his
discovery responses "the day of sentencing."
The circuit court recognized that "[t]he issue of the
Fifth Amendment is an open question on whether it applies or not
. . . [s]o that's an open question." The circuit court ruled:
"one is, I'm going to compel access to the phone; two is, I'm
going to compel nontestimonial discovery. And as far as
testimonial discovery, we'll defer until [after sentencing.]"
The circuit court did not specify during the hearing which
discovery responses called for non-testimonial rather than
testimonial responses.
The record shows that Ganir had substantial
justification for asserting his Fifth Amendment right against
self-incrimination because of the way the plaintiffs' discovery
requests were worded, and because he had yet to be sentenced in
his criminal case. Under these circumstances, the circuit court
acted outside of its discretion by imposing HRCP Rule 37(d)
sanctions against Ganir.
For these reasons, paragraph 9 of the "Order Granting
Plaintiffs' Motion for an Order Compelling Discovery and for Fees
and Sanctions Against Defendant Alan Gallardo Ganir" entered on
July 12, 2019, is reversed.
DATED: Honolulu, Hawai#i, February 23, 2024.

On the briefs:
/s/ Katherine G. Leonard
Matthew Mannisto, Acting Chief Judge
for Defendant-Appellant
Alan Gallardo Ganir. /s/ Keith K. Hiraoka
Associate Judge
Daniel G. Hempey,
Michelle Premeaux, /s/ Clyde J. Wadsworth
Brian K. Mackintosh, Associate Judge
for Plaintiffs-Appellees.

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