HAGÅTÑA (The Guam Daily Post) — The U.S. District Court of Guam declined to grant the request from federal receiver Gershman, Brickner & Bratton Inc. to limit the use of documents produced in response to a subpoena issued in the 2017 lawsuit filed by the government of Guam against the federal government over the cleanup of the former Ordot dump.
The District Court determined that it is premature at this stage to conclude that the subpoena is being used to circumvent immunity granted to GBB.
“No claim or lawsuit has been filed against the receiver, and counsel for the government of Guam has assured this court that they will comply with the procedures set forth in the (receiver’s) appointment order,” District Court Chief Judge Frances Tydincgo-Gatewood stated in a January order.
Filings at the District Court show that GBB believes GovGuam plans to sue the receiver. Filings also touch on an issue regarding the design of the Ordot dump facility.
Guam’s solid waste services were placed under federal receivership in 2008 due to the 2002 federal lawsuit to force the closure of the Ordot dump over environmental concerns. Today, the Guam Solid Waste Authority handles day-to-day trash collection operations, while GBB remains responsible for mitigation efforts at the former dumpsite.
In 2017, GovGuam filed its own lawsuit seeking compensation for costs associated with Ordot dump under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA.
In late September 2023, a judge at the District Court of the District of Columbia approved a partial consent decree in the 2017 suit, under which the U.S. government would pay GovGuam nearly $50 million for past response costs related to the release or threatened release of hazardous substances at Ordot dump, before Aug. 10, 2022.
A memorandum in the CERCLA case indicated negotiations were ongoing to address some, if not all, of the remaining claims in the lawsuit.
By December 2023, GBB received a subpoena in the CERCLA lawsuit directing the submission of various documents related to Ordot dump.
On Jan. 10, GBB motioned the District Court of Guam for an order prohibiting GovGuam from using documents produced for the subpoena as grounds for suit against the receiver.
Threat of suit
GBB attorney Joyce Tang stated in the motion that GovGuam made clear threats to sue the receiver, but the government had not been transparent about its intentions regarding the CERCLA case subpoena.
“GovGuam’s threat to sue the receiver was revealed when the receiver received a proposed agreement to toll the statute of limitations for GovGuam to file suit against the receiver (“the Tolling Agreement”). The receiver refused to sign the Tolling Agreement because it has immunity from suit, and that any action against the receiver must first be approved by the (Guam District) Court,” Tang stated.
“Although GovGuam’s counsel initially stated that the purpose of the CERCLA subpoena was to obtain information to assist GovGuam in its claim for future costs, the breadth of the subpoena clearly suggests that documents are being sought for a much broader purpose – one which is not related to the CERCLA lawsuit. This was further made evident during a video conference on Jan. 4 between the receiver’s attorneys and GovGuam’s counsel (Kelley Drye firm), when GovGuam’s counsel acknowledged that any documents provided by the receiver in response to the CERCLA subpoena could be used in a suit by GovGuam against the receiver,” Tang added.
When asked if the parties could agree that documents produced for the subpoena could not be used in a claim against the receiver, the response was “no,” Tang stated.
Defects
Her motion further stated that GovGuam believes the cover and design aspects of the Ordot dump facility are defective, and that the government said it has reports to support that claim, which had not been shared with GBB.
“GovGuam has taken a completely adversarial position against the receiver. This is especially evident given GovGuam’s active participation in the instant case, and the multiple opportunities GovGuam had to raise this issue during any one of the frequent meet-and-confer sessions being conducted pursuant to the court’s order, which are intended to identify and resolve issues among the parties in a neutral setting,” Tang stated.
In response to GBB’s motion, Deputy Attorney General Graham Botha stated that no violation of the District Court’s order appointing the receiver had occurred, nor is GovGuam withholding documents from the receiver.
“The receiver’s recent accusations – made just days before the receiver has a duty to comply with the subpoena – that Guam is in violation of the order appointing the receiver is false and merely a last-ditch effort to delay production of the documents the receiver has refused to produce for many months. Guam is not improperly limiting access to or withholding documents or reports from the receiver. Indeed, Guam does not have any final nonprivileged reports regarding issues bearing on future costs of the Ordot dump to share with the receiver. Any draft expert report prepared for Guam’s use at mediation with the United States concerning future costs are protected attorney work product in another case and do not fall within the scope of the provision in the order related to Guam’s files,” Botha stated on Jan. 12.
He added that the subpoena does not conflict with the requirement to seek permission from the Guam District Court before filing a claim against the receiver. Serving a subpoena does not constitute filing a claim, Botha stated.
In a reply filed the next day, Tang stated that GovGuam was being disingenuous.
“Although GovGuam has not yet filed the threatened lawsuit against the receiver, the admissions (and repeated threats) of GovGuam’s lawyers and its conduct unequivocally indicate GovGuam is actively preparing to file such a suit and that the subpoena is being used to obtain pre-filing discovery. … What the receiver is requesting is for an order protecting this court’s receiver and limiting GovGuam’s use of the produced documents against the receiver on Guam,” Tang added.
Hearing and order
After an emergency hearing on Jan. 15, Tydingco-Gatewood ordered Tang and attorney Jeffrey Moots, the governor’s legal counsel, to take the lead in coordinating a meeting with attorneys representing GovGuam in the CERCLA case regarding the Guam District Court’s expectation that stakeholders work cooperatively, in good faith and with civility and transparency.
The chief judge also ordered the receiver and GovGuam to discuss the draft report concerning the alleged design flaw at Ordot dump, and the time of its disclosure to the receiver, “particularly because it will affect the work remaining in this court and because the Receiver is willing to enter into a protective order to address any concern of its improper disclosure.”
Minutes for the Jan. 15 hearing stated that Tang argued that GovGuam, by refusing to provide her with the report, undermined the work of the receiver.
Moots, meanwhile, stated the report was in draft form, and once it is finalized and provided to the U.S. Environmental Protection Agency, it will be filed at the District Court of Guam and provided to the receiver.
Status hearing pushed back
The court also pushed back the status hearing on the Ordot dump case, which was set to happen on Valentine’s Day, due to scheduling needs. The hearing is now set to take place on April 10, with a joint status report to be filed by April 4.
