Hammer v. Howard Medical, Inc.

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE JUDGE l THE CIRCLE, SUITE 2 GEORGETOWN, DE 19947

TELEPHONE (302) 856-5264

October 30, 2017

Ms. Nancy Hammer Dennis L. Schrader, Esq.

PO Box 492 R. Eric Hacker, Esq.

Nassau, DE 19969 Morris J ames Wilson Halbrook & Bayard, LLP 107 W. Market Street P.O. Box 690

Georgetown, DE 19947

RE: Nancy Hammer v. Howard Medical, Inc., and Howard Industries, Inc. C.A. No.: SlSC-05-006 RFS Dear Parties:

On April 26, 2017, this Court issued an Order granting Defendants’ Motion to Dismiss for Discovery Violations. On May 8, 2017, Plaintiff (“Hammer”) filed her Motion for Relief - (“Motion”). Defendants’ (“Howard”) Response Was filed on May 30, 2017. On June l, 2017, Hammer filed her Reply. On August 18, 2017, Hammer’s Motion was denied. On August 28, 2017, Harnrner filed a Response opposing the August 18th decision (“Response”). This Response

is nothing more than a Motion for Reargument Under Rule 59(e), a Motion for Reargument

must be served and filed Within five days after issuance of the opinion or decision in question1

l Super. Ct. Civ. R. 59(e).

Being untimely,2 the Court cannot jurisdictionally hear Hammer’s Response. lt is DENIED on this basis.

Even if not barred, the Response would not be persuasive. In this regard, several points should be made.

After Hammer failed to appear at the pretrial conference on April 26, 2017, Howard’s Motion to Dismiss was granted by letter opinion. Hammer knew the pretrial conference was scheduled for April 26th, as established by the Court’s letter of March 13, 2017.3 Hammer had knowledge of this date as well through the CourtConnect entry on April 3, 2017, which reflected that the pretrial conference date was moved to April 26, 2017.4 The pretrial conference date was never changed. The trial date of May 1, 2017, as established by the Scheduling Order remained in place.5

When Hammer was hospitalized on March 2, 2017 for a diabetic condition, the Deputy Prothonotary asked for medical information in response to Hammer’s request to give her more time.6 On March 7, 2017 and March 13, 2017, the Deputy Prothonotary advised that the Court would grant Hammer time, and asked for a doctor’s note so the matter could be temporarily stayed.7 Thereafter, the Court made three requests for detailed medical information to permit a

reasoned consideration of a stay on March 31, 2017, April 5, 2017, and April 19, 2017.8

2 Hammer’s response to the denial of her Motion for Relief was filed 1 day after the five-day deadline to file a motion for reargument

3 Letter from Judge Richard F. Stokes to Parties, March 13, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 250; Trans. ID 60330185). At all times Hammer’s record address is: P.O. Box 492, Nassau, Delaware. Dates referenced throughout the decision reflect the day on which the document was “clocked in” to the Court’s e-filing system, File & Serve.

4 The scheduling event portion of CourtConnect reflected the pretrial conference originally set for April 4, 2017 had been moved to April 26, 2017. The entry dated April 3, 2017 reads in pertinent part as follows: “Pretrial conference scheduled for 4/4/17_rescheduled to 4/26/17.”

5 Pretrial Scheduling Order, Feb. 25, 2016 (File & Serve Docket No. 58; Trans. ID 58603468).

6 File & Serve Docket No. 254; Trans. ID 60375655.

7 Id.

8 Letter from Judge Richard F. Stokes to Nancy Hammer, March 31, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 259); Letter from Judge Richard F. Stokes to Nancy Hammer, April 5, 2017 (on file with

Sufficient information was not provided Hammer understood that a stay had not been granted, as she asked for a 90 day temporary stay in a pleading filed on April 10, 2017.9 Conceming Howard’s Motion to Dismiss initially scheduled for April 13, 2017, Hammer asked to attend by phone.10 Hammer made no effort to attend or even to inquire about the pretrial conference On April 24, 2017, the parties were advised by a letter from the Court that “at the pretrial conference, all pending matters will be discussed as requested in defendants’ letter of April 21, 2017.”ll The docket included the quoted language The letter was sent to Hammer’s address of record. Also, out of an abundance of caution, it was emailed to Hammer’s email account at 1:31 p.m. on Apri124, 2017.12 Hammer’s Motion for Relief from Order was filed on May 8, 2017. Although it had 91 pages of arguments and exhibits, the Court’s letter of April 24th is not mentioned anywhere. Howard filed its Reply on May 22, 2017. At several places Howard emphasizes the Court’s April 24th letter: At page 2: This Court later modified certain dates within the Pretrial Scheduling Order. often to accommodate Plaintiff. The last modification came by way of this Courl’s March 101 2017 letter in which the Couit Sct Apii'l 261 2017 as the date for the pretrial conference The Court reiterated this in a Letter Order dated April 24,

2017, in which the Court informed the parties that it would consider all pending

Delaware Superior Court, File & Serve Docket No. 260; Trans. ID 60426199); Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID

60492733). 9 Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017 (on file with Delaware Superior Court, File

& Serve Docket No. 261; Trans. ID 60453776).

10 Id. " Letter from Judge Richard F. Stokes to Parties, April 24, 2017 (on file with Delaware Superior Court, File &

Serve Docket No. 268; Trans. ID 60509112). 12 Hammer’s email address is nh56199@gmail.com. In the case, Hammer wanted Howard to email filings to her7 although there was no legal requirement to do so. Pl.’s Mot. Relief Order, Ex. B (File & Serve Docket No. 283;

Trans. ID 60571799). The emailed letter is attached as Exhibit 1. 3

matters at the parties’ April 26 pretrial conference The Plaintiff knew or should have known of these scheduled events.13 Further, at page 5: As noted earlier, on April 24, 20171 the Court’s letter order informed

the parties that it would consider all pending matters at the parties’ April 26

pretrial conl`erence.14

Moreover, at page 111 likewise Plaintif`f` had notice and opportunity to appear at the April 26 pretrial conference The April 26 date was set by the Couit’s March 10 Letter Order which revised the existing scheduling order to accommodate Plainti'l"f’ s alleged medical conditions. The Court reaffirmed that the April 26 hearing would occur1 including in its April 24 Letter Order. That April 24 Letter

Order expressly stated that “all pending matters [wouldl be discussed” at the

pretrial conference 15

On June 1, 2017, Hammer replied to Howard’s May 22, 2017 filing. There, Hammer refers to the Court’s April 24111 letter this way: “‘The Court’s letter oi"April 24, 2017 did not include the words April 26 as Defendants falsely allege in their response.”16 Further, Hammer asserts: “Def`endants falsely misrepresent in their response that this Court’s letter o'l` April 24, 2017, ‘reaffirined that the April 26 hearing would occur.’ The Court’s letter ot`April 241 2017

does not include such statement.”17 No claim of ignorance is made.

13 Defs.’ Resp. Pl.’s Mot. Relief Order, 2 (internal citations omitted)(emphasis added)(File & Serve 284; Trans. ID 60629 17 1 ).

14 Id. at 5 (internal citations omitted)(emphasis added).

15 Id. at 11 (internal citations omitted)(emphasis added). The Court notes that this quotation references the previously discussed March 13, 2017 letter as a letter dated March 10, 2017. This discrepancy exists because the letter was dated March 10, 2017, but was not “clocked-in” to the e-filing system, File & Serve, until March 13, 2017, after a weekend. As previously stated, the Court’s dates reference the date a document Was clocked-in to File & Serve Under the electronic system, there is generally a 24 hour “roll over” period.

16 Pl.’s Resp. Defs.’ Resp. Pl.’s Mot. Relief Order, 2 (emphasis added)(File & Serve Docket No. 286; Trans. ID 60669421).

17 Id. at 12 (emphasis added).

After the Court’s decision of August 18, 2017, Hammer’s filing on August 28, 2017 asserts: “With regards to Judge Stokes letter of April 24, 2017, it did not include the words April 26 as alleged in Opinion. Further` Plaintiff received this April 24 letter after the hearing and pretrial cc_nif`erence were held."`18 The latter argument is a new one which is waived under settled principles of law.19

Nevertheless, for purposes of discussion only, it has no merit.

Again, the pretrial conference of April 26th was scheduled in the March 13111 letter. Nowhere does Hammer claim she did not know about this date nor deny receiving the March 13th letter. The statement in the Court’s letter of April 24th about the pretrial conference plainly carries the April 26th date To suggest differently is an argument weaved out of whole cloth. The April 24th letter was mailed to her address of record.

Moreover, the Court emailed its April 24th letter to Hammer’s email address. In her filings through June lst, Hammer merely objected to the date of April 26th not being stated near the phrase “at the pretrial conference”. While on April 28, 2017 Hammer asked the Court to email her a copy of Howard’s April 21St letter, at no time did Hammer make a similar request about the Court’s April 24th letter.20 Again, Hammer did not complain about not receiving or knowing about it before the pretrial conference because she knew better.

Hammer takes an untenable position with her denial of knowledge about Howard’s April 21St letter. Obviously, Howard’s letter requested that its Motion to Dismiss, originally set for hearing on April 13, 2017, be granted. It is clear that the issues were still alive at this time

Context is important For over one year and multiple court orders and hearings, Hammer had

18 Resp. Opp’n Op. Order Den. Pl.’s Mot. Relief Order, 9 (italicized and bolded text in original, underlining added)(File & Serve Docket No. 288; Trans. ID 61040623).

19 Pelers ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *2 (Del. Super. Ct. May 7, 2012). 20 Pl.’s Mot. Relief Order, Ex. B (File & Serve Docket No. 283; Trans. ID 60571799).

been directed and told how to properly answer simple interrogatories.21 By supplementing interrogatory responses prepared on February 19, 2017, but dated February 20, 2017 and filed on April 10, 2017, Hammer contended Howard’s pending Motion to Dismiss was moot because she had fulfilled all of her obligations.22

However, the subject was passed to give Howard an opportunity to respond by the Court’s letter dated April 19, 2017.23 Hammer has acknowledged knowledge and receipt of the April 19111letter.24 ln the letter Howard was ordered to respond to Hammer’s claim that the discovery issues were moot. Hammer knew that Howard’s response was due on April 21, 2017, as stated in the letter.25

Hammer responded to the Court’s April 19‘111etter. By letter filed on April 24, 2017, Hammer continued to complain about having to properly answer the interrogatories26 The letter makes the statement: “The Plaintiff is unable to address the Defendant’s letter of April 21, 2017, since the Defendants have failed to provide the Plaintiff with a copy.”27

There is a parsing of words in this last statement which is coneeming. Not getting a copy and not knowing what it is about it are two separate things. The issues were not resolved and Howard wanted its Motion granted, as reflected in the docket. Without undue repetition, the

Court’s letter of April 24th is tied into Howard’s request for relief. Hammer’s reference to the

April 21st letter reflects her access to docket information That information would include the

21 Hammer v. Howard Medical, Inc. and Howard Industries, Inc., Order Granting Defendants’ Motion to Dismiss for Discovery Violations, April 26, 2017 (File & Serve Docket No. 278; Trans. ID 60523286).

22 Pl.’s Resp. Defs.’ Mot. Dismiss Disc. Violations, 1-2 (File & Serve Docket No. 264; Trans. ID 60453776).

23 Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID 60492733).

24 Letter from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625).

25 Id. at 3. 26 Id. The letter was filed at 4:42 p,m., over three hours after the emailing of the Court’s April 2411‘ letter. Letter

from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625). 27 Id. at 6.

Court’s April 24th letter which called for the settling of all pending matters at the pretrial conference, as requested by Howard.28 Under the electronic filing system, the publically available time of viewing the Court’s letter of April 24111 and Howard’s letter of April 21St would be April 25t11, the day before the pretrial conference29 Further, Howard properly served its April 21St letter to Hammer’s address of record. Counsel submitted an affidavit dated May 22, 2017 by Maryann Lehman, an employee of that firm. The affidavit verifies that April 21St was the mailing date, the mail was sent to the record address, and the mail was never returned as “undeliverable.”30 Hammer did not dispute the service by a counter affidavit. Affidavits are required at the time of decision.31 Notwithstanding, Hammer makes unsworn accusations that counsel fabricated service by manipulating a postage meter to falsely indicate an April 21St mailing date32 According to Hammer, the fraud was necessary because Howard’s counsel “. . .found it necessary to deceptively concoct a defense,”33 i.e., to refute her claim that the mailing of the April 21st letter had to be done after that date This is a charge of unethical conduct. While litigants enjoy a privilege, unsupported claims of this nature are beyond the pale Hammer does not have a good

faith basis or evidential support for this serious accusation. While any meter has the potential for

misuse, nothing more is presented here than Hammer’s mere speculation A lawyer can be

211 The Court’s April 24, 2017 letter to the parties is File & Serve Docket No. 268 and is identified by Transaction ID 60509112. Hammer could have brought any matters of importance to her, Which litigants commonly do at pretrial

conferences

29 Hammer had actual notice by virtue of the emailing of the Court’s April 24‘1‘ letter together with service from Howard discussed above.

311 Defs.’ Resp. Pl.’s Mot Relief Order, Ex. A (File & Serve Docket No. 284; Trans. ID 60629171).

31 Peters ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *3(Del. Super. Ct. May 7, 2012)(“affidavits may not be submitted in support of a motion for reargument Accordingly, the Court will not consider the affidavits submitted by Plaintiffs in support of their Motion for Reargument”).

32 Pl.’s Resp. Defs.’ Resp. Pl.’s Mot. Relief Order, 5 (File & Serve Docket No. 2861 Trans. ID 60669421).

33 Id.

suspended or disbarred for fraudulent conduct of this nature34 This is not the first time Hammer has accused Howard’s counsel of unethical conduct and has exceeded litigation standards.35

With this background, Hammer knew Howard’s Motion was pending and that it would be considered at the pretrial conference Hammer simply ignored it.

Hammer seeks to cast a picture of herself as a victimized, helpless party. This is not so. Hammer’s medical condition is not germane to the issues in Howard’s motion.36 Her updated responses filed on April 10, 2017 were actually prepared on February 19, 2017 and dated on February 20, 2017, well in advance of any later diabetic problem.37 These responses were not compliant, and there is no expectation that they ever would be so given her record.

Moreover, specific information about her medical condition was sought. Hammer did provide a note from a nurse practitioner about an office visit on March 16, 2017.38 At that time Hammer had been discharged from Beebe Medical Center (“Beebe”). Thereafter, Hammer provided a doctor’s note about her admission to Beebe on March 2, 2017.39 As previously indicated, to ascertain the extent of her problem, Hammer was ordered to provide more detailed

information by three letters. The first letter is dated March 31, 2017. lt ordered her to provide

34 In re Shearin, 721 A.2d 157 (Del. 1998); Fabrication or Sappression of Evia’ence as Grouna' of Disciplinary Action Against Attorney, 40 A.L.R.3d 169, §7a (originally published 1971).

35 At many points too numerous to cite, Hammer has personally attacked Howard’s lawyers. For example, at a December 2, 2016 hearing, Hammer accused Howard and its counsel of impermissibly engaging in ex parte communications with the Court, However, when questioned by the Court Hammer refused to explain how she had come by this information because she had no support for her assertion. Hammer v. Howard Medical, Inc., 2017 WL 1170795, at *4 (Del. Super. Ct. Feb. 14, 2017).

36 The Court also notes that the diagnosis of diabetes is very common, and is treated by doctors on a very regular basis. What is particularly unique or challenging about Hammer’s health condition is not known. Hammer seems to believe that providing detailed information would somehow prejudice her case. Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017, para. 7 (on file with Delaware Superior Court, File & Serve Docket No. 261; Trans. ID 60453776).

37 Pl.’s Mot. Relief Order, Ex. E (File & Serve Docket No. 283; Trans. ID 60571799).

38 File & Serve Docket No. 254; Trans. ID 60375655.

39 Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 261; Trans. ID 60453776), Ex. B.

“all necessary medical documentation to the Court no later than April 12, 2017.”40 The documentation was to include “records of your admissions to Beebe Hospital after February 14, 2017 to date.” Hammer states that she was not hospitalized at Beebe on February 14, 2017 and, therefore, did not have to provide what should have been easily obtainable records.41 This explanation is spurious; Hammer did not follow the direction.

On April 5, 2017, a second letter directed Hammer to supply records after February 14, 2017, should she have been hospitalized at hospitals other than Beebe Hospital.42 On April 10, 2017, Hammer filed an emergency room note by a Beebe Hospital physician that only stated Hammer was admitted on Thursday, March 2, 2017 and that she would be unable to perform regular duties while hospitalized The requested details were not provided

By a third letter on April 19, 2017, over a month after she had seen a nurse practitioner, Hammer was ordered: “On the subject of a medical specialist, you must provide the name of the specialist and the date of your appointment by Friday, April 21, 2017.”43 In a response, she claimed to have an appointment with a “specialist’s nurse practitioner” on May 9, 2017.44 In context, a health practitioner associated with a specialist is different from the family practice nurse seen on March 16, 2017. The name of the specialist nurse or the specialist associated with

doctors was not provided as required As a result, the Court was left in the cold.

40 Letter from Judge Richard Stokes to Nancy Hammer, March 31, 2017 (on file with the Delaware Superior Court, File & Serve Docket No. 259). 41 Pl.’s Resp. Opp’n Op. Order Den. Pl.’s Mot. Relief Order, 23 (File & Serve Docket No. 288; Trans. ID

61040623).

42 Letter from Judge Richard F. Stokes to Nancy Hammer, April 5, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 260; Trans. ID 60426199).

43 Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID 60492733).

44 Letter from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625).

Hammer has never claimed she could not attend or participate in the pretrial conference on April 26, 2017, even if by phone to accommodate any documented issue on her physical

condition.

Considering the foregoing, Hammer’s Motion remains DENIED. Any further

submissions will be disregarded

IT IS SO ORDERED.

Very truly yours,

f _ tard F. Stokes

Attachment: Exhibit 1 cc: Prothonotary

Thomas, Myrtle (Courts)

Sent: |\/|onday, April 24, 2017 1231 P|\/l

To: nh56199@gmail.com

Subject: SlSC-05-006

Attachments: SlBC-OS-00620170424_13181021.pdf; slSc-05-006 compe|20170214_l6213381.pdf Categories: Egress vaitch: Unprotected

Attached is a letter from Judge Stokes.

Myn‘£&A. 77qu

Chief Deputy Prothonotary 302-855-7399 myrt|e.thomaa@etate.de.us

Sussex County Superior Court 1 The Circ|e, Suite 2 Georgetown, DE 19947

Exl'\`\bi'l' l

Slll’l'lRI()R ('()L|l{'l' ()l" 'l`lil;` S'l`ATl'l ()l" l)l€l./\WAR[C

SUSSEX COUNTY (.`.()URTH()USE l'l`llF. (`ll{(`l .l~`,. Slll'l`F. 2 (i|;`()l{(ili'l`()\\/N. l)l;' 19947

TEl,l".l’l |()l\ll". (3(12) 85(1-5.%4

RICHARD l". S'l`()l\'lib` /( "/)(,`/'.

April 24` 20|7

l)enni.\' l.. Schradel. lisq.

R. liric llacl

Morris .lame.s Wilson lla|hrook & Ba_yard l.l.l’

107 W. Marl\'el Slreel

l‘.(). Box ()1)()

(ieorgetown` l)li l1)1)47

l\/ls. Nancy llantmer P() Box 402 Na.\‘.sau` l)l{ I‘N()()

lZl-., Nancy llammer v. Howard Medical. lnc., and lloward

lndustries, Inc. (`.A. No.: Sl$(`-l)$-tltlo RFS

l)eat l‘arties:

/\t the pretrial conference all pending matters will he discussed as requested in

deletidants' letter ol`./\pril 2l. 20| 7. l"utthcr. del`endants` should tile the al`l`ida\'it requested by

the (.'ourt at page lll ol` the attached Order before the eonl`crenee. Ms. llammer received medical treatment lora medical condition; a lleathcr (`amphe|| commt,micnled wi|h the civil unit about the emergency nature ol` the silualion. This was an and the email ctunmunicalion.\' were provided to del`end;tnt.\'. The (`ourl will not accept

exigency or consider an_\' ¢'.\ parte eommunications or representations l`rom lleathel (`,ampl)el|. l)et`endants

shall lie provided all entails l`rom (`amphell.

l'l` lS S() ()Rl)lil{l;i[).

Very,t'r tljr you rst

Richard l". Sto ex

l",nc' (`ourt Order dated Februaryl 14_2@[]7:3| Hd 112 H(W tan cci Prothonotary ~1

_ tiano:) xBSSnS m t '*:'fati,.'mtr.triiw

sur>icnlon count or 'rnt; s'rA'ru otr t)El,AW/\Ric

SUSSEX COUNTY COURTI|OUSE l 'l`lll", (.`ll{(`.LlS, SUI'I`E 2 GEORCE'I`()\VN, DE 19947 'I`l",l.l".PllONl'I (302) 856-5264

RlCl{ARl) I". S'I`OKES ./UDGE

February 14, 201 7

Nancy Hammer P.O. Box 492 Nassau, Delaware l9969

Dcnnis L. Sclirader, Esq.

R. Eric I'lackcr, Esq.

Morris Jamcs Wilson llalbrook & Bayard, LLP l07 W. Marl

P.O. Box 690

Georgctown. Delaware 19947

Rc: Nanr.jv Hammer \', Howard Mc'(/ica/, Inc., Howard lnc/us(rt`t'.s', Inc. C.A. No. Sl5C-05-00(> RFS

Datc Submitted: December 2, 20l6 Date Decidcd: February l4, 2017

llpon Plaintii"f`s Motion to Coinpcl Discovery. Grantcd in Part.

Upon Plaintil`l`s Motion for Contempt and l`or Sanctions. Denied for Contempt.

Dcar |’atiies:

This is a breach ol` an agreement suit to pay connnissions by Nancy Hammer ("llammcr") against lloward Medical, Inc. and Howard lndustrics‘ Inc. ("Ho\\'ard"). On or about July l, 2()|()` Hammer filed her Sccond Requcst l"or Production ol` Documcnts ("RFP")

from lloward. On October 20, 2()|6, Hammer filed both a Motion to Compel and a Motion for

Contcmpt and Sanctions relating to lioward`s failure to produce certain documents

Only items 3 and 4 of thc RFP arc in dispute ltctn 3 Souglit production of all invoices from Howard to health care providers with which Hammer had dealings "for period commencing March l, 20|3 ending December 3l, 2015."1 ltem 4 sought production of all cancelled checks made payable to Howard for "pcriod commencing March l, 2013 and ending December 3|, 2015.“2

Significantly, Hammer provided a sample for reference to each ilem. As for item 3, the sample invoice was for Howard lndustrics, Inc. to a vendor named Westmorland Hospital Excela. There was a net balance due for live items separately shipped with associated information The subtotal due was $516,614.78 and, after payment of two chccks, the net balance due was $16,()14.78. The invoice reflects a typical open account between a vendor and a supplier. As to item 4, there is a sample check is from a different vendor, Ohio Valley Genera| Hospital in the amount of $24,932.84 which was deposited in a Howard industries account # 6400143732.

The RFP is a carefully prepared document There is no ambiguity Dcspite the clarity of the words "invoiccs and checks," Hammer has sought to expand the scope by adding additional categories informally in various entails to I~loward`s counsel. l'ler demand is for separate documents including purchase orders and order confirmations above and beyond the invoices and checks detailed in the RFP. Howard contends that the expanded scope is beyond the RI"P.

Moreover, in any event. that Howard has voluntarily supplied additional documents beyond

invoices and cheeks.

1 [)cfs.` Resp. l’l.'s Mot. (.`ompel I)ise & l’l.'s Mot. Contempl Sanctions, lixA A. docket entry 185 2itt

l\)

The RFP does not call for more document production Hammer’s claim in paragraph l ot` her Motion for Contempt is misstated3 At all times Howard reserved its objection and never agreed to be bound by any obligation to produce documents beyond invoices and checks for the defined time period like the sample attached to the RFP.

At the time of rcsponse, on or about August I, 201(), Howard requested that Hammer enter a protective order as the items would implicate its economic interests. Hammer refused The subject of a protective order Was discussed during the August 5, 2016 hearing4 Hammer Was advised that the arrangement would not prejudice her and that should a dispute arise about confidentiality the Court could decide the mattcr.i On more than one occasion, Hammer has incorrectly stated that the Court advised that the documents be released to her first for her review before an order would be entercd.° Howard provided Hammer with an inventory of these documents

Thcreafter, Howard moved t`or a protective order on August 8, 20|().7 By written submissions on August 29, 2()1(), Howard submitted the invoices and more before the expiration ofthe discovery period on August 31, 2016. The submissions were by cmail and later by regular mai|. Hammer contended that the PDF electronic format in a zip file could not be opened on her computer. This contention is not persuasive as zip files can be easily opened Howard offered to

and did produce hard copies. Howard opened the zip files and emailed them to Hammer as

3 well.

l Pl.’s Mot. Contcmpt Sanctions 2. ‘ 'l`ranscript ofAugust 5, 2016 l~lcaring a135. §

l¢f. ill 36.

ti I¢l. l See decision on Motion for l’rotectivc ()rder ot` even datc. x l)cfs.` (`ollectivc Resp. l’l.`s Mot. Compe| l)ise. l’|.`s Mot. (.`ontcmpt Sanctions, lix, |~`..

Conceming the documents produced. at the (`,ourt`s request, llo\vard provided information with the (`ourt by letters dated December 30, 201(), January 24, 2017` and February 7, 2017.`) llammer had the opportunity to commenL including a letter filed on l"cbruary 3, 2017. Givcn the nature ofthc lettcr, Howard Was asked to respond which it did by its letter of February 7, 2017. Hammer was advised that no further submissions would be pcrmitted.'"

Upon review of the inf`t')rmation provided the discovery inventory listed 38 invoices for orders placed with health care vendors. 'l`his information was provided to Hammer on August 5, 201(). liurthcr, Howard provided five payment records responsive to item 4 in the Rl“`P. 'l`he payment records were supplied in lieu of checks as lloward contended it did not possess or have control ofthc checks.

Moreovcr. on August 29, 201(), Howard, reserving the right for a protective order, produced hard copies of 38 invoices responsive to item 3. Thcsc invoices track the sample provided in the Rl"l’. llowar'd also provided payment received reports between l\/larch 1, 2013 and December 31, 2015 from lixcela llcalth in the amount 01`3§289,()84.14, from lleritagc \/alley Hcalth Systems in the amount of $558.558.24` from lleritagc Valley Heath Systems licavcr in thc amount of $519.28, from lleritagc Vallcy llealth Systeni Scwicklcy in the amount of

3179.56. and from Ohio Valley Gcneral Hospital in thc amount of$()t)`$§¢t().l 1. The foregoing

payment received reports were voluntarily tendered by llowar'd.

q Letter from l)cnrris lll Sc|rrader and R_ l~`.ric llackcr, Morris errnes Wilson llalhrook & Bayard, to Judge Richard l-`. Stokes (l)ccr 30. 2()1())(on file with Delaware Superior (`orrrt); I.ettcr from R l:'ric llacker. Morris Jarrres Wilson llalbrook & l!ayard. to Judge Richard |~`. Stokes (Jan. 24, 2017)(on tile with the Delaware Superior (`onrt); Letter from R. l{ric llackcr. Morris .larnes Wilson llalhrook & I’»ayard. to .ludgc Richard |". Stokes (l~'eb 7_ 2()17)(on tile with the Delaware Supcrior Court).

m 300 l.clter from Alan liarraclough, (`ivil .|udicial (`ase Manager to Judge Richard 1~`. Stokcs, to l’arties (Nov. 3‘ Zt)l(\)(on file with Delaware S\rpcrior Court); l.cttcr from Alan Barraclorrgh, (`ivil judicial (`ase Manager to judge Richard l". Stokes. to Parries (Nov 18. 201til(on tile with Delaware Supcrior ("orrrt); Letter from /\lar\ Barrac|ough_ Civil ,|udicial Case Manager to Judge Richard l". Stokcs, to |’artics (l~`cb. 3. 2017)(0|1 tile with Delaware l§uperior

C`o\rr'l).

liurthcr‘. on August 311 201(), Howard voluntarily produced purchase orders and confirmations in PDF format marked confidential. The hard copies come to 79 pages All of

this information provided Hammer with supplemental information on the subject of sales and

potential commissions duc.

Conceming the inventory, Hammer claims she never requested it. llpon review of the exhibits this contention is not pcrsuasivc." l*`urther. lloward responded to her request to learn when Scott Striekland and Bil| Salcrno left Howard’s employment in item 2 of the Rl"l’ by providing records lt also produced payroll records llpon review, l-lammcr`s contention that she did not request them is also not pcrsuasivc.'2 As to the payment received reports, Hammer claims they were provided to obf`uscatc her discovery and to circumvent the discovery process llowever, these arc business records from which Hammer can derive helpful information to her

casc. |n any cvan these records were beyond the scope of the RFP under the RFP, and no

consideration will be given to any of llammcr s perceived deficiencies as to these rtcms.' After r'e\/icw, Howard complied with item 3 ofthc RFI". Any delay was precipitated by Howard’s interest in requesting a protective order. 'l`his motion was made good faith, although it

was not ultimately successful

ll l’l 's Mot (`ompcl I)isc ; l etter from R. l:'ric llackcr, Morris .larncs Wi|son llalbrook & liayard, to judge Richard l". Stokes (l~`eh 7, 2017)(ou tile with l)cla\vare Supcrior (`ourt)_

"' l.etter from R. F.ric llackcr. Morris .lamcs Wilson llalbrook & lla_vard` to Judge Richard |~`. Stokes (l"cb, 7. 2017)(on file with Delaware Supcrior Court)

13 Again, at the (.`ourt`s request, Howard’s february 7` 2017 letter was written to respond to llanrmcr`s letter of l"ebruary 1. 2017. Hammer was instructed that no further submissions by her would be considered Hammer’s letter ofl"chruary 5. 2017 will be filcd, but not considered The letter represents a pattern where flammer files unsolicited letters of responses to responses despite being instructed otherwise .S`¢'t' Letter from Alan Harraclough, (.`ivil Judicial (.`asc Manager to Judge Richard l". Stokes. to l’anies (Nov. 3, 201())(<)11 file with Delaware Superior (.`ouri); l.cttcr from Alan Barraclough. Civil Judieial Casc Mauagcr to Judge Richard 1". Stokes to l’arties (No\'. IX, 201())(ou file with Delaware Supcrior (`ourt); l.cttcr from Alan l`£arraclough. (`ivil Judicial (`asc Mauager to lodge Richard |". Stokes to l’ar'ties (l"eb. 3,2017)(011 file With l)elawarc Superior (`ourt).

§

RI"P item 4 requested ehecks. Howard objected that it did not possess or control them in its filings ofAugust 29, 201()."1 No checks were produced provided until December 19, 201 ().'5 llowai'd`s argument was that Hammer would have to obtain thc checks from the custodian ot`tlic banks where the vendors in:-iintained accounts However, Howard’s hank, chions Banl<, retained copies of the checks deposited in Howard’s account. Hammer stated that Howard also had copies ol" the checks in its regular accounting records This assertion was based oii her anecdotal experiences where questions regarding vendors’ payments had arisen. l'loward denied that it had regularly supplied copies of checks in that situation `l`hc question cannot be decided

on the grounds of possession as the record is not developed on that point. Ratliei‘ the question

can be resolved by reviewing the case law on control.

A general overview ol` the issue is helpl`ul. According to Wright`s /i`cdvrrz/ PracI/’ce um/ [’/'()ccr/iu‘e1 ". . . Rule 34 providcs, in language that has always been in the i'ulc, that discovery may he had of documents and things that are in the `possession, eustody, or eontrol` of a paity.""l '|`hc key inquiry turns on whether or not the party had "control" over the information sought. "The concept of `eontrol` has been construed broadly."'7 ll` a party has a legal right, authority, or practical ability to obtain the information. even ifnot in its actual physical control,

l)

then the paity must produce thc intonnation.l This point has been reiterated in many cases.

H l)efs.' (`ollective Resp. l’l.`s Mot. (`ompel l)isci Mot. (',`ontenipt Sanv.'tion, l§x. C. 15 l.etter front l{. l',`rie llacker" Mon'is Alaiiics Wilsoii llalbrook & lia_\-'ar\'|, to Judge Richard l~ Stokes (l)eeeiiibcr l‘), lZf)l t))(oii file with l)elaware Superior (.`ourt). "` 813 Wriglit. Miller, & (Topcr, /"¢:'r/c'l'u] l’rrlc'lice & procedure § 2210. :; m ,-t» /~‘/a,,» 'r."/¢~r-~m rJ¢»/r//,ig.\-, /.ii/. sat /11'11;¢.,236 i’-'.R.i)_ 177. isa (s.i).r~i.v zt)t)r»i

lr/. "' ln re NTL, //i('. S¢'

possessic_ui o|` the doruiiii:uts has the rightl authority. or practical ability tn obtain llie citations omitted); l’rr)l

(i

lt is of no consequence that the information sought may he in the possession of a third paity who is not party to the suit. "A party may be required to produce documents and things that it possesses even though they belong to a third person who is not a party to the action."Z" However. where a paity has assured that lie or she will be able to obtain docuincnts, but is then

~ . '_"I .~ s ~ unsuccesstul, there is no conti'ol. lhe ( ourt should locus on whether the party made a good

faith effort to produce the documents

l"`urther. it is notable that the Court can require a party to fill out a request form in order to obtain documents Simply having to request iiil`ornialion, for example an Sl:i(` transcript, will bring the infonnation under the paity`s control.13 Also. confidentiality is not a basis on which to deny production24 th, there are limits to control. "'l`he relationship between the party and the person or entity having actual possession of the document is central iii each casc...'l`his special relationship |a|lowing control] exists when a party is able to command release of the documents by the person or entity in actual possession and is usually the result of statute1 affiliatioii, or eniployment."25 lior example. the relationship between a patient and doctor is not deemed to fall

. . . . ~ 2( » ~ under this special category ot control, so medical records are not under a party s control. ` lhus.

l/i/¢'l'n. Y`l'm/r' (`rmi ')i \' A.S`.'H`, /nr'., 4ll l" 3d 245. 254 (l) |).(` J(tt_t_§)("(`oiitrol is defined as the legal right_ authority, oi ability to obtain documeiits."); lii re /)mi/i'¢'r\' '/`i'u.\/ (`r) . 61 l~`..'td 465` 460 (_6"‘ ('ir lO()$)("lt necessarily follows. llieii. that parties in possession ofdocuineiits forwart'lcd to them by a federal agency have `possession. custody or control` within thc meaning ol`Rulc 34, notwithst.'tnding the fact that the agency by regulation retains ownership and restricts disclosure.").

m SB Wright. Miller. & (`opcr, l"eili'ru/ l’rm'ri`r'¢' A" I’rr)r'i'i!uri' § 2210.

n Sr’(lrr)r'/r i'. .\`ri'i`;)/I`rig. 736 l".2d 650. 654 ( l l'll (`ir. l‘)l't4)("...|l|l does not appear from this record that Stripling asserted `eoiitrol` over the doculiients iii the sense required l`or production under Rule 34...We lind instead that thc primary dispositive issue is whether Stripling made a good faith effort to obtain the documents over which he iiia_v have indicated lie had control in whatever scnse. and whether after making such a good faith effort he was unable to

obtain and thus produce them ").

22 lrl_ -

n l’rr’.\'r't'i'rrli`urr l’rr)r/u¢'l.\'. l..l. (`. i'. Nurl'uc¢'illicrl/ (.`/t`)ii¢'ul. 214 l~`.R.l). 494‘ 496 (N.l).lll. 20()3)(" l`he fact that Simmons does not currently have copies iii his possession is not significant because he hasl 'coiitro|` o|` those documents by signing tlic necessary request forni."),

" rn i-<» r-'/a_i; Ti»/i»i-~m lr~/¢Img.-. mt sai- r,m‘g t 236 i~'.R.i)_ 177. isa (s.i).isi_v. zat)m.

” l:.-mii- ~_/`i'aim_g \'. rra/im-.\-, i34 i-'.iz.i). 29 i. 294 ii).Nc-v, 191)1).

?" (`/rlr/< \'_ l'i'grr lf'/ir)/¢'.w/[r', lm', ll

as long as the party has the legal right to request bank records from his or her bank (speeial rclationship), he or she will be considered to have control over the documents

This subject was discussed at the December 2, 2016 hearing.27 At that time, Howard agreed Regions Bank had copies of the checks and was willing to provide them. After discussion, the only open issue concerned costs for obtaining the checks Howard believed a multitude of checks would have to be requested at considerable expense Howard was to give the Court an estimate ofthc cxpense.

On December l()` 2016, Howard advised the Court that the number of checks was less than cxpected. Checks covered several open items on an aceount. At that juncturc, Howard produced checks for the requested time period, reserving its right for a retroactive protective order.Zx

Howard`s position that it did not control and did not have to produce the checks is not persuasivel Under the law. Howard had at least constructive control. The discovery should not have been refused on the basis that Hammer should have to obtain checks from thc bank directly, Theret`ore, Howard did not meet its discovery obligations and in this regard Hammer`s point is correct_

While discovery was delayed until December 19, 2016, there was Still the pending issue of the protective order. Hammer has not suffered prejudice because the checks have been

provided and the voluntary responses ofthe invoices gave sufficient linancial infonnation.

37 Transcript ol`l)ecenil)er 2. 2016 l{earing at 12-13. "H `l`he t`nurt totaled |lte value of thc checks produced by Howard and cimipai'i.~d them to thc invoices along with the

other voluntarily produced documents `|`hi.‘sc appear to be slight tliiplii.:atinns and prior ofl`scts. `l he total comes to

S‘}I!!i."!t)tt.flt]. [l`tlu1 Agent M.iin;igenicnt Agrccnient is genuine (l|owarr| contends il is a for_i:r'ry). |Ianinicr would be entitled to 10% ol` that amount, $‘)2,670.()00, for her commissions

l n > . ‘( llanimer complains that Howard did not produce the records in an organized way_l)

After review, Howard produced them in accord with Rule 34. Howard correctly Suminarizcs thc

law:

"l |ndcr Siipei'ioi‘ Couit (`ivil Rule 34` a producing party may produce documents `as they are kept in the usual course of l)usiiicss,` or it may produce them in a format organized and labeled according to the categories in the production rcquest. 'I`he purpose of this section of Rule 34 is two-fold. First, it ensures that documents are provided in a logical format and to prevent the parties from hiding critical documents though volume or disari'ay. Sce Am. Ba/‘ /t.s's‘u Secl/`c))i aj /.i`li'g., Secom/ Re/)orl 0_/ the S/)€Ci`al (`<)m/iii`I/ec'_/i)i‘ I/ie S/uc/_v Q/`l)iscoi'c>)jt" A/)i/sv, 92 F.R.D. 137, 177-78 (1980)(diseussiiig the initial adoption of this provision for l~`ederal Rule of(`ivil Proeedure 34). Seeond, it prevents requesting parties from ovci'burdcning producing parties by requesting documents in unique or unusual ways. Se¢' SB Cllczr/cs A/a)i Wri'g/il. el a/., /"e(/era/ Prac!i'c‘c' and ]))'0(‘<'¢1'~)'0 § 2213 (3d ed_ V¥)est 201())(diseussing analogous language iii liedcral Rule of (`ivil Pi'oeedure Rule 34).

l'lowai‘d gave Hammer separate electronic liles of items 3 and 4 of the RFP, invoices and checks All documents are together1 invoiccs, checks, and payment reeords. llard copy papers ofthc purchase orders and confirmations were done in the same l`ashioii.

Additionally, Howard argues that Hammer waived her right to file a motion to eompel. 'l`lie Court remarked that Hammer could file a motion at the August 5, 2()|() heai‘ing. Hammer waited until ()ctobcr 2(). 201() to file her l\/|otion to (`ompcl. 'l`he cited authority is (`/ii'i'sli'mi in (`01//130/1'11,2 Resc'arc'/z /ls.s'r)c/`ares, /m'.}l 'l`he subject matter concerned the use of expert repoits. The Supreiiic Court found that if a paity did not move foiward until an objection to a passed deadline date, then there could bc no complaint about later produced rcports. While the l\/lotioii to C`ompel was filed in October, Hammer certainly made her objections known at the August

hearing. ln this context` l do not lind l~loward`s argument to be persuasive

w l etter from Nancy llammer to .ludge Richard l". Stokes (l)ee. 23. 2()1())(on file with l)el:i\varc Supcrior (`oiirt). m Letter from l)cnnis l . Schrader and Ri F..ric llacker. Morris James Wilsoii llalbrook & H:iyard. to Judge Richard li, Stokes [l)cc. 30, 201())(on l`ile with tlie Delaware Supcrior Court).

" no A.J¢i ii)s_z` max (Dt-ir 20i3).

ln sum, l find there was substantial justification to withhold discovery pending resolution of the protective order throuin the discovery cutoff date of August 3l, 201(). Howard had a reasonable belief that an order would be entered and acted accordingly When the discovery cutoff passed. Howard provided the invoices seeking to have the protective order made retroactive Hainmcr`s claims to not receiving or being able to open the zip liles are not persuasive

ln Hammer`s letter filed on February 3, 2()|7, she claims checks were not provided for certain invoices listed in paragraph 4.32 Howard contends that those checks where not within the time period requested in the RFP. Howard should file an affidavit to confirm that point and no further action will be taken.

While Howard’s position on control ofthc checks was misplaced, the checks were later supplied There was a delay of approximately four and a halfinontlis. Hammer had to file the Motion which resulted in the belated production of the checks. While there was a discovery violation, Howard`s conduct does not rise to the level of contempt.33 An order to compel for production of checks is appropi'iate, but the production has rendered it moot.

As the documents have been provided, only the check portion of the dispute is

sanctionable ln that regard, an offset can be made against Hammer’s obligations to Howard for

her discovery violations Hammer shall submit an affidavit on or before March 3, 2017 and

Howard shall reply on or before March l3, 2017 on the ainount.

l'l` IS S() ()RI)|CR|'L|).

n Letter from Nancy l [iimmer to Judge Richard F. Stokes (l-cli. 3. 2f)l7)(oii l`ile with Delaware Stiperior (_`ouri}_

“ Black`+~l l nw |)iriimi:iry defines eoiiicii:pt as "conduct thai c|c~t`ies the authority or dignity ofa court or legislature Bccausc such conduct i'iir¢'ijfer¢'.\' with l/i(' admiiii.\'Irri/imi o_/:/`u.vticr(', il is punishable by fmc or iiiiprisonincnt." lllack`s l.aw l)ictionary (9"' cd. 2009) , available at West|aw Bl./\(_`KS (emphasis added).

l()

Cc: Prothonotary Nancy llammer

Dennis Schradcr, Esq.

R. F.ric Hacker, F.sq.

Ricl‘taid

j\/cry ti ul -yoiirs

///3/

l'(.‘~l_tokes Judge

tF‘tiC Hcl ’Tl SB,J/lUZ