SUPERIOR COURT OF THE STATE OF DELAWARE
ABIGAIL M. LEGROW NEW CASTLE COUNTY COURTHOUSE JUDGE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669
March 1, 2016
Nicholas D. Mozal, Esquire Michael J. Logullo, Esquire 100 S. West Street, Suite 400 Rawle & Henderson LLP Wilmington, DE 19801 300 Delaware Avenue, Suite 1015 P.O. Box 588 Armand J. Della Porta, Esquire Wilmington, DE 19899 Jessica L. Tyler, Esquire Marshall Dennehey Warner Coleman & Goggin 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899
RE: AT&T Corporation v. Carrier Corporation, et al. C.A. No. N14C-05-206 AML
Dear Counsel:
Plaintiff AT&T Corporation (“AT&T”) alleges in this action that two
HVAC systems sold and installed by Defendant National H.V.A.C. Service Ltd.,
L.P. (“National”) were installed negligently in AT&T’s commercial building in
New Castle County, Delaware. On May 23, 2104, AT&T filed this action, alleging
claims for breach of express warranty and negligence against National and
negligent manufacturing against Defendant Carrier Corporation (“Carrier”), who C.A. No. N14C-05-206 AML March 1, 2016 Page 2
manufactured the systems. The Court previously denied National’s motion to
dismiss and granted National’s motion for leave to file a third party complaint. I
now turn to various discovery motions filed by the parties.
Background
AT&T propounded its second interrogatories, which were served on
February 16, 2015 (the “Interrogatories”), and its second and third requests for
production of documents or things directed to National, which were served on
February 16, 2015 and March 20, 2015, respectively (the “Requests”). National’s
responses were due March 18, 2015 and April 20, 2015.1 On March 20, 2015,
April 15, 2015, and May 15, 2015, AT&T inquired of National’s counsel when
responses would be received. On May 18, 2015, National’s counsel responded that
he was “not sure about the delay” and would “follow up with [his] client.”2 On
June 9, 2015, AT&T notified National that if a response to the discovery requests
was not received before June 11th, AT&T would file a motion to compel. 3
National responded to the Requests on June 11, 2015 but did not respond to the
1 Super. Ct. Civ. R. 34(b). 2 Certification of Nicholas D. Mozal, Esq. Ex. G (“Cert.”). 3 Cert. Ex. H. C.A. No. N14C-05-206 AML March 1, 2016 Page 3
Interrogatories. On August 14, 2015 and August 17, 2015, AT&T made two more
inquiries. 4 National finally responded to the Interrogatories on August 20, 2015.
AT&T then sent at least five letters to National regarding alleged
deficiencies in its responses to the Interrogatories and Requests. 5 When those
efforts failed to resolve AT&T’s concerns, AT&T filed a motion to compel
supplemental responses to the allegedly deficient responses.
In the midst of the parties’ disputes regarding written discovery, efforts also
were underway to schedule numerous depositions. Although most depositions
were scheduled, National resisted efforts to schedule the deposition of its corporate
representative under Superior Court Rule 30(b)(6). AT&T first requested the
30(b)(6) deposition on March 13, 2015. National delayed in scheduling and then
took the position that the deposition should not be scheduled unless and until
National’s motion to dismiss was denied.
National filed a motion for protective order against further discovery on
August 25, 2015. AT&T filed a cross-motion to compel the 30(b)(6) deposition on
September 29, 2015. In its motion for protective order, National took the position
that discovery should be stayed until National’s pending motion to dismiss was
4 Cert. Ex. J. 5 Cert. Ex. K. C.A. No. N14C-05-206 AML March 1, 2016 Page 4
resolved, and, if the motion to dismiss was denied, an additional party—Johnson
Controls, Inc.—was added to the proceedings. 6 National reasoned that delaying
discovery, including the 30(b)(6) deposition, would avoid unnecessary or
redundant discovery. In response, and in its motion to compel the deposition,
AT&T argued that National failed to raise the issue of adding a third party until
after the time to answer the amended complaint had run and that waiting until the
motion to dismiss was resolved is another example of National “continuing its
practice of delay in this case by withholding discovery from the parties.”7
In its motion to compel supplemental discovery responses, AT&T argued
National must provide the requested versions and copies of contracts it entered into
with AT&T between January 1, 2012 and July 1, 2012. AT&T also sought
supplemental responses to Interrogatory Nos. 3-7, which generally sought details
surrounding National offering an alarm for the system’s drip pan and whether
National believed the drip pan was adequate to remove the condensation from the
Carrier HVAC system. 8
6 National’s Mot. for Protective Order ¶ 6. Allegedly, Johnson Controls was the property manager for AT&T’s commercial building. Johnson Controls purportedly coordinated with National for the purchase and installation of the HVAC system on behalf of AT&T. AT&T’s Resp. to National’s Mot. for Leave to File a Third Party Compl. ¶ 2. 7 AT&T’s Mot. to Compel Dep. of Corp. Rep. ¶¶ 7-8. 8 AT&T vaguely argues National’s responses to the Requests have been “elusive and do not state whether it has produced all responsive documents in its possession,” but AT&T does not provide National’s C.A. No. N14C-05-206 AML March 1, 2016 Page 5
The 30(b)(6) Deposition
National’s position regarding continued discovery, including the deposition
of its corporate representative, is incongruous to National’s general willingness to
engage in substantial discovery before the motion to dismiss was resolved and the
third-party complaint filed. Whatever the merit of National’s motion for protective
order, however, the passage of time 9 and the filing of the third-party complaint 10
favor waiting an additional limited period of time until Johnson Controls enters its
appearance. Once Johnson Controls responds to the complaint – even if the
response is a motion to dismiss – the deposition of National’s 30(b)(6) witness
shall be scheduled and held within four weeks of such response, and the parties
shall continue other discovery promptly. More than enough time has passed since
this action was filed.
AT&T’s Motion to Compel Supplemental Responses to Discovery
National’s response to AT&T’s motion to compel largely was non-
responsive and failed to address the content of National’s discovery or its
responses to the Requests or any evidence that the parties discussed anything other than the production of the contracts described above. Aside from addressing the issue of whether National must produce the contracts in its possession, custody, or control, I cannot address the sufficiency of any other responses to the Requests, as AT&T has not provided an adequate record on which to do so. 9 The motion to dismiss was denied on January 19, 2016. (D.I. # 123). 10 National’s Answer to the Am. Compl. with Third Party Compl. Against Johnson Controls, Inc. (DI. #124). C.A. No. N14C-05-206 AML March 1, 2016 Page 6
unexplained five-month delay in responding to the Interrogatories. Rather than
address AT&T’s contention that National’s discovery responses were deficient,
National instead raised a vague unclean hands defense, asserting, in substance, that
AT&T also had engaged in discovery violations.
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SUPERIOR COURT OF THE STATE OF DELAWARE
ABIGAIL M. LEGROW NEW CASTLE COUNTY COURTHOUSE JUDGE 500 North King Street, Suite 10400 Wilmington, DE 19801-3733 Telephone (302) 255-0669
March 1, 2016
Nicholas D. Mozal, Esquire Michael J. Logullo, Esquire 100 S. West Street, Suite 400 Rawle & Henderson LLP Wilmington, DE 19801 300 Delaware Avenue, Suite 1015 P.O. Box 588 Armand J. Della Porta, Esquire Wilmington, DE 19899 Jessica L. Tyler, Esquire Marshall Dennehey Warner Coleman & Goggin 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899
RE: AT&T Corporation v. Carrier Corporation, et al. C.A. No. N14C-05-206 AML
Dear Counsel:
Plaintiff AT&T Corporation (“AT&T”) alleges in this action that two
HVAC systems sold and installed by Defendant National H.V.A.C. Service Ltd.,
L.P. (“National”) were installed negligently in AT&T’s commercial building in
New Castle County, Delaware. On May 23, 2104, AT&T filed this action, alleging
claims for breach of express warranty and negligence against National and
negligent manufacturing against Defendant Carrier Corporation (“Carrier”), who C.A. No. N14C-05-206 AML March 1, 2016 Page 2
manufactured the systems. The Court previously denied National’s motion to
dismiss and granted National’s motion for leave to file a third party complaint. I
now turn to various discovery motions filed by the parties.
Background
AT&T propounded its second interrogatories, which were served on
February 16, 2015 (the “Interrogatories”), and its second and third requests for
production of documents or things directed to National, which were served on
February 16, 2015 and March 20, 2015, respectively (the “Requests”). National’s
responses were due March 18, 2015 and April 20, 2015.1 On March 20, 2015,
April 15, 2015, and May 15, 2015, AT&T inquired of National’s counsel when
responses would be received. On May 18, 2015, National’s counsel responded that
he was “not sure about the delay” and would “follow up with [his] client.”2 On
June 9, 2015, AT&T notified National that if a response to the discovery requests
was not received before June 11th, AT&T would file a motion to compel. 3
National responded to the Requests on June 11, 2015 but did not respond to the
1 Super. Ct. Civ. R. 34(b). 2 Certification of Nicholas D. Mozal, Esq. Ex. G (“Cert.”). 3 Cert. Ex. H. C.A. No. N14C-05-206 AML March 1, 2016 Page 3
Interrogatories. On August 14, 2015 and August 17, 2015, AT&T made two more
inquiries. 4 National finally responded to the Interrogatories on August 20, 2015.
AT&T then sent at least five letters to National regarding alleged
deficiencies in its responses to the Interrogatories and Requests. 5 When those
efforts failed to resolve AT&T’s concerns, AT&T filed a motion to compel
supplemental responses to the allegedly deficient responses.
In the midst of the parties’ disputes regarding written discovery, efforts also
were underway to schedule numerous depositions. Although most depositions
were scheduled, National resisted efforts to schedule the deposition of its corporate
representative under Superior Court Rule 30(b)(6). AT&T first requested the
30(b)(6) deposition on March 13, 2015. National delayed in scheduling and then
took the position that the deposition should not be scheduled unless and until
National’s motion to dismiss was denied.
National filed a motion for protective order against further discovery on
August 25, 2015. AT&T filed a cross-motion to compel the 30(b)(6) deposition on
September 29, 2015. In its motion for protective order, National took the position
that discovery should be stayed until National’s pending motion to dismiss was
4 Cert. Ex. J. 5 Cert. Ex. K. C.A. No. N14C-05-206 AML March 1, 2016 Page 4
resolved, and, if the motion to dismiss was denied, an additional party—Johnson
Controls, Inc.—was added to the proceedings. 6 National reasoned that delaying
discovery, including the 30(b)(6) deposition, would avoid unnecessary or
redundant discovery. In response, and in its motion to compel the deposition,
AT&T argued that National failed to raise the issue of adding a third party until
after the time to answer the amended complaint had run and that waiting until the
motion to dismiss was resolved is another example of National “continuing its
practice of delay in this case by withholding discovery from the parties.”7
In its motion to compel supplemental discovery responses, AT&T argued
National must provide the requested versions and copies of contracts it entered into
with AT&T between January 1, 2012 and July 1, 2012. AT&T also sought
supplemental responses to Interrogatory Nos. 3-7, which generally sought details
surrounding National offering an alarm for the system’s drip pan and whether
National believed the drip pan was adequate to remove the condensation from the
Carrier HVAC system. 8
6 National’s Mot. for Protective Order ¶ 6. Allegedly, Johnson Controls was the property manager for AT&T’s commercial building. Johnson Controls purportedly coordinated with National for the purchase and installation of the HVAC system on behalf of AT&T. AT&T’s Resp. to National’s Mot. for Leave to File a Third Party Compl. ¶ 2. 7 AT&T’s Mot. to Compel Dep. of Corp. Rep. ¶¶ 7-8. 8 AT&T vaguely argues National’s responses to the Requests have been “elusive and do not state whether it has produced all responsive documents in its possession,” but AT&T does not provide National’s C.A. No. N14C-05-206 AML March 1, 2016 Page 5
The 30(b)(6) Deposition
National’s position regarding continued discovery, including the deposition
of its corporate representative, is incongruous to National’s general willingness to
engage in substantial discovery before the motion to dismiss was resolved and the
third-party complaint filed. Whatever the merit of National’s motion for protective
order, however, the passage of time 9 and the filing of the third-party complaint 10
favor waiting an additional limited period of time until Johnson Controls enters its
appearance. Once Johnson Controls responds to the complaint – even if the
response is a motion to dismiss – the deposition of National’s 30(b)(6) witness
shall be scheduled and held within four weeks of such response, and the parties
shall continue other discovery promptly. More than enough time has passed since
this action was filed.
AT&T’s Motion to Compel Supplemental Responses to Discovery
National’s response to AT&T’s motion to compel largely was non-
responsive and failed to address the content of National’s discovery or its
responses to the Requests or any evidence that the parties discussed anything other than the production of the contracts described above. Aside from addressing the issue of whether National must produce the contracts in its possession, custody, or control, I cannot address the sufficiency of any other responses to the Requests, as AT&T has not provided an adequate record on which to do so. 9 The motion to dismiss was denied on January 19, 2016. (D.I. # 123). 10 National’s Answer to the Am. Compl. with Third Party Compl. Against Johnson Controls, Inc. (DI. #124). C.A. No. N14C-05-206 AML March 1, 2016 Page 6
unexplained five-month delay in responding to the Interrogatories. Rather than
address AT&T’s contention that National’s discovery responses were deficient,
National instead raised a vague unclean hands defense, asserting, in substance, that
AT&T also had engaged in discovery violations. Such a “response” is neither
helpful nor productive.
By failing to defend in any way its responses to AT&T’s Interrogatories,
National effectively concedes the merit of AT&T’s position. Even if National had
not conceded as much, I have reviewed the responses and find that National’s
responses to Interrogatory Nos. 3, 4, and 7 are non-responsive, violating Superior
Court Civil Rule 33. Interrogatory No. 3 asked National to state “whether in
June of 2012, National offered for installation an alarm for the overflow of a drip
pan.” National’s response that it “did not offer any equipment beyond that
specified and installed by the manufacturer at the factory” is evasive and does not
fairly address the question. Interrogatory No. 4 inquired as to “why an alarm
relating to the overflow of a drip pan was not offered to AT&T before
June 16, 2012 if one was needed for installation with the Carrier HVAC system
you installed.” National’s answer referred to drip pans but did not address alarms,
which was the question’s focus. Finally, Interrogatory No. 7 asked whether C.A. No. N14C-05-206 AML March 1, 2016 Page 7
National “had any reason to believe that the drip pan that came with the
Carrier HVAC System was not adequate to safely remove the condensation from
the Carrier HVAC System.” National refused to respond on the basis that “it seeks
disclosure of expert opinions.” The question did not seek an expert opinion, but
rather inquired into National’s knowledge, if any, at “any time before
June 17, 2012.”
AT&T’s motion to compel supplemental responses to Interrogatory Nos. 5
and 6, on the other hand, is denied. The interrogatory instructions do not ask for an
explanation of the basis for a response. That one or more witnesses may have
testified in a manner arguably inconsistent with a response does not make the
response incomplete.
As for the Requests, National must provide items that are in its “possession,
custody, and control.” 11 The fact that AT&T already may have the requested
contracts does not excuse National from its discovery obligations, particularly
since what contracts National has in its possession may be directly relevant to one
or more of the disputes in this case. Accordingly, National shall provide
responsive documents to the Requests Nos. 2 and 3 and supplemental responses to
Interrogatory Nos. 3, 4, and 7, within ten days of this letter’s date. 11 Super. Ct. Civ. R. 34(a)(1). C.A. No. N14C-05-206 AML March 1, 2016 Page 8
Once Johnson Controls has responded to the third-party complaint, counsel
shall contact my chambers to obtain a new trial date, after which a trial scheduling
order will be issued.
IT IS SO ORDERED.
Sincerely,
/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge
AML:cmb Original to Prothonotary