An ongoing dispute over the disclosure of documents in a civil lawsuit brought by the family of an 11-year-old Boy Scout killed last August by the accidental discharge of an AK-47 semi-automatic rifle at Camp Honokaia near Honokaa has led a judge to order the appointment of a special master to oversee the discovery process.
Hilo Circuit Judge Henry Nakamoto on Friday granted the request by attorneys Lincoln Ashida and Nicholas Lee for a third-party review of documents sought by the plaintiffs in the wrongful death suit filed by the family of Manuel “Manny” Carvalho.
Ashida and Lee, represent the Boy Scouts of America and its Aloha Council, respectively,
Carvalho was shot in the back of the head Aug. 28, 2022, during a “Family Fun Day” outing while seated behind the firing line at one of the camp’s ranges. According to the Hawaii Police Department, the gunshot that killed the Waiakea Intermediate School sixth-grader occurred when an “unsupervised” boy picked up the firearm, which discharged when he put it back down on a table.
Thomas Biscup, one of the lawyers representing the Carvalhos, told Nakamoto that despite orders from the judge to produce all documents by May 12 and an extension of the deadline to May 26, the Boy Scouts of America hasn’t turned over requested documents about shooting “incidents or near misses” on Boy Scout ranges.
“The first time, we received nothing. On May 26 we received nothing,” Biscup said. “(Thursday) night, we received six pages of a printout of (a) spreadsheet, just one document. We’d asked for the records relating to that, including individual reports that were done. And we got one document. And again, that came late last night. …We had asked for 2014 to the present. What we got was a summary from 2018 to the present. … It has some detail on some of them, and no detail on others.
“We asked for everything related to those incidents, and I think it’s appropriate that we should get those. And we should have gotten them a while ago.”
The current motion to compel discovery filed by the Carvalho’s attorneys contained a Boy Scouts “executive packet” dated July 12, 2022, that expressed concern the organizations’ standard operating procedures weren’t being followed at Boy Scout shooting ranges, causing “several shooting sports-related incidents and near misses.”
Ashida told the judge the motions filed and arguments made by Biscup and co-counsel Kris LaGuire “really further validates the need for a discovery master.”
“They take that newsletter and say, well ‘near miss’ and ‘prior shooting incidents,’” Ashida said. “And you know, that bothers me, because … you say something in court, and it gets repeated, especially in the media, and then it becomes like, the urban legend. It becomes true. Ah, there’s been prior shootings. OK?
“You want to know what happened? We’re going to produce it. In the entire 120-year history, all throughout the world, there have been three … incidents. Only one where they were shooting at a metal target and a bullet ricocheted and hit somebody. Not fatality. Injury, fine. OK? I just wanted to make that clear.
“This is not some, you know, monster of prior incidents that the Boy Scouts are nefariously and deliberately withholding, eh?”
Biscup opined Ashida and co-counsel Andrew Chianese were dragging out discovery and “trying to bootstrap into getting a master appointed.”
“The fact that this Excel spreadsheet is all that they have? Your Honor, they have a whole … procedure for doing incidents and near miss reports. There’s a form they have. There’s requirements to do this. I find it hard to believe that they don’t have the underlying documents,” he said.
“This idea that, somehow, any of this is all that complicated? It’s not. … Now, whether there was one, two or three, that’s one, two or three too many. … But the words are BSA’s own words that they put out in this newsletter that went out to a limited number of people a month and a half before Manny Carvalho was shot to death.
“… For Mr. Ashida to downplay that now is to undercut his own clients’ words. … What they said was based on a number of these incidents and near misses that occurred. And the reasons that they said that the things that happened in the analysis of those incidents, were the exact same things that happened here.
“It’s really not that difficult at this point. Masters are only for extraordinary circumstances. And this is a very simplistic case, in a lot of ways. What are the standards and did you follow them?”
“You said simple. But we’re here, I don’t know, two, three times already,” Nakamoto told Biscup. “And I know you’re taking (depositions). I see the docket sheet. To me, it’s an extensive case.”
The judge then said he’ll appoint a special discovery master from a list of candidates submitted by the plaintiffs and the respondents.
The next hearing is set for 8:30 a.m. Aug. 16.
Email John Burnett at jburnett@hawaiitribune-herald.com.
