30807004-alimony-word-in-white-3d-letters-on-a-ball-or-sphere-of-money-to-illustrate-financial-spousal-suppor[1]The recent decision in the case captioned R.S. v. W.E., Del Fam. Ct., No. CN10-05981, Kerr, J. (Jan. 4, 2017), warns Family Court litigants that failure to comply with discovery can have consequences. In this case, R.S. (“Wife”) was seeking (among other things) alimony. Leading up to the hearing date her ex-husband, W.E. (“Husband”) issued discovery asking for the production of documents. Husband asked for documents related to her income. In addition, he asked for an updated list of her expenses and “[a]ll documents supporting each and every monthly current expenses you wish to have the Court consider in calculating alimony….” Id. at 1. Despite the issuance of an Order on June 10, 2016 compelling the production of documents, Wife failed to produce the documents regarding her expenses. With regard to her income, she produced only a profit and loss statement from her accountant with no supporting documentation.

When the parties appeared for the ancillary hearing on January 4, 2017, Husband made a motion in limine to preclude Wife from presenting evidence relating to her income or her monthly expenses. The Court granted Husband’s motion stating:

Pursuant to 13 DEL. C. § 1512, the Court may award alimony to a dependent party. While the court can alleviate the prejudice to Husband in Wife’s failure to provide supporting documentation for her profit and loss statement by either attributing Wife with her gross receipts or attributing Wife with income from the Wage and Labor Survey, the same cannot be done for her expenses. Husband is severely prejudiced by Wife’s failure to provide documentation pursuant to the Requests on her expenses. Husband would have been able to prepare for questions regarding her expenses had the documents been provided. Wife did not even provide a bare list of expenses to Husband’s counsel or to the Court in the pretrial. If there were a lesser sanction which would address Wife’s failure without prejudice the Court would enter the lesser sanction. However, there is no lesser sanction.

Thus, the Court cannot permit Wife to testify as to her expenses. Without evidence as to Wife’s monthly expenses, dependency cannot be established as Wife’s reasonable needs cannot be determined. Wife was informed by the Court at the pretrial conference that she needed to provide the opposing party with certain documentation. In addition, two Motions to Compel were filed against Wife during a time when Wife was represented by Counsel. Therefore, the Court finds that Wife was aware that she needed to produce documentation relating to her income and expenses but failed to do so. Id. at 3 – 4.

Since the Court was unable to determine Wife’s reasonable needs, alimony was set at $0 per month.

The entire Letter Decision and Order may be found here.

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Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP.  Leslie practices in Fox Rothschild’s Wilmington, Delaware office.  You can reach Leslie at (302) 622-4203, or lspoltore@foxrothschild.com.

I have had a number of recent inquiries in my practice regarding issuance of foreign subpoenas in Delaware.  As a follow up to Leslie’s post on the Delaware Uniform Interstate Depositions and Discovery Act, here is a list of items needed for filing a request to issue a foreign subpoena in Delaware pursuant to the Uniform Interstate Depositions and Discovery Act:

  • Cover Letter:  indicating where the signed and sealed subpoena should be sent or a contact name and number.
  • Subpoena: Original and one copy of:
    • Foreign Subpoena; and
    • Delaware Subpoena which includes the names, address and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any pro se party (see form here).
  • Filing Fee:  $75.00 check payable to Prothonotary Office.
  • Filing Location: The county in which the discovery is sought to be conducted.

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Seth Niederman is a partner with the law firm Fox Rothschild LLP. Seth practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Seth at 302-622-4238, or sniederman@foxrothschild.com.

There is always a tension between requiring a third party to produce relevant discovery and protecting that third party against “unduly burdensome” discovery requests.  By order dated September 3, 2015, Commissioner Bradley V. Manning of the Delaware Superior Court struck such a balance in granting-in-part and denying-in-part a Motion to Compel and related Motion to Quash.  See September 3, 2015 Order in Gemalto, Inc. v. Merchant Customer Exchanges, LLC, C.A. No. N15M-07-052 (Del. Super. Ct.), available here.

In an underlying breach of contract dispute between Gemalto, Inc. and Merchant Customer Exchanges, LLC (“MCX”) pending before the American Arbitration Association (“AAA”), Gemalto sought discovery from MCX regarding MCX’s rationale for terminating its agreement with Gemalto and subsequently hiring another company, Paydiant, to finish the job.  Gemalto also sought similar discovery from Paydiant, a non-party, and served a subpoena duces tecum on Paydiant’s registered agent in Delaware.  Dissatisfied with Paydiant’s response to the subpoena, Gemalto filed a Motion to Compel in the Delaware Superior Court.  Paydiant then filed a Motion to Quash the subpoena.

Gemalto’s subpoena requested documents relating to ten topics, including documents regarding the reason why MCX terminated the contract with Gemalto.  As Commissioner Manning noted, such documents would logically be in the possession of MCX.  Commissioner Manning further noted the following:  “As a non-party to the litigation, requiring Paydiant to produce any discovery is burdensome; whether it is ‘unduly burdensome’ is a question for another day.  In any event, as a non-party, Paydiant should not be placed in a position of providing discovery that is duplicative, cumulative or could more conveniently and reasonably be located in the possession of its creator—MCX.”  The Court, however, “recognize[d] that in the course of soliciting Paydiant to take over the software development from Gemalto, MCX may have communicated information concerning the reason for Gemalto’s termination to Paydiant; information relevant to Gemalto’s claim.”

Accordingly, Commissioner Manning ordered Paydiant to produce documents relating to three of the ten subpoena topics relating specifically to the Gemalto-MCX contract and MCX’s rationale for terminating the contract.  Commissioner Manning specifically excluded trade secrets and commercially sensitive information from his Order, stating that such information need not be produced.           

This Order provides a good example of the balancing act a Court must perform in connection with a subpoena for documents.  The requesting party’s right to the information must be carefully balanced against the burdensomeness to the third party of complying with the subpoena.