IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
MARSHALL FAMILY ) PROPERTIES, LLC, ) ) Petitioner and ) Counterclaim Defendant, ) ) v. ) C.A. No. 2023-0992-CDW ) THOMAS M. FUSCO, EILEEN F. ) FUSCO, AUGUSTO PALMIERI, ) and LAN WANG, ) ) Respondents and ) Counterclaim Plaintiffs. )
REPORT GRANTING PETITIONER’S MOTION TO STRIKE
Date Submitted: October 6, 2025 Date Decided: January 28, 2026
Steven A. Spence, MELUNEY ALLEMAN & SPENCE, LLC, Lewes, Delaware; Counsel for Petitioner and Counterclaim Defendant Marshall Family Properties, LLC
Robert J. Valihura, Jr. and Sean M. Quinn, MORTON, VALIHURA & ZERBATO, LLC, Greenville, Delaware; Counsel for Respondents and Counterclaim Plaintiffs Thomas M. Fusco, Eileen F. Fusco, Augusto Palmieri, and Lan Wang
WRIGHT, M. Petitioner Marshall Family Properties, LLC1 has filed a Motion to
Strike (“Motion”),2 asking the court to prohibit respondents Thomas M.
Fusco, Eileen F. Fusco, Augusto Palmieri, and Lan Wang from using in their
post-trial briefing a property deed from 1948 that respondents did not include
on the joint exhibit list or use at trial. For the reasons explained below, I grant
the Motion.
I. BACKGROUND
On October 2, 2023, petitioner filed a petition to quiet title and for
declaratory judgment.3 The real property at issue is an approximately 18-feet-
wide by 2,500-feet-long strip of land that borders the Oyster Rocks
subdivision and the Holland Farm along Delaware Route 1 near Milton
(“Strip”).4
On December 18, respondents answered the petition and asserted
counterclaims against petitioner for slander of title and adverse possession.5
In their counterclaim, respondents alleged that “[t]he deeds constituting chain
of title to the entire Fusco Residence [including part of the Strip] are attached
1 For brevity, this report omits the parties’ counterclaim designations. 2 Dkt. 51. 3 Dkt. 1. 4 Id. ¶¶ 9–18; Dkt. 10 Ans. ¶¶ 9–18, Countercl. ¶¶ 9–17. 5 See generally Dkt. 10. hereto as Exhibit C”6 and “[t]he deeds constituting the chain of title to the
Palmieri residence [including part of the Strip] are attached hereto as Exhibit
D.”7 Respondents seek a declaratory judgment that they “acquired their
respective Residences by valid deeds, which include all lands, including the
disputed portion of the Residences[,]” and thus “are the sole record owners of
the entirety” of their respective properties.8 The attached deeds are dated
November 20, 2001 to December 16, 2004 and to February 1, 2005 for the
Fusco and Palmieri residences, respectively.9
The parties subsequently engaged in discovery.10 On January 25, 2024,
petitioner served its First Set of Interrogatories Directed to Respondents and
its First Set of Requests for Production Directed to Respondents.11 Several of
the discovery requests, and respondents’ responses to them, are relevant here:
• Interrogatory Nos. 4 and 5 asked respondents to “[i]dentify
the property records or other documents you contend show the
6 Countercl. ¶ 10, Dkt. 10 (emphasis in original). 7 Id. ¶ 14 (emphasis in original). 8 Id. ¶¶ 19 & 21. 9 See id. Exs. C–D. 10 See Dkts. 12–13, 20–26. This was a one-sided affair, as the docket reflects that respondents did not propound any written discovery or notice any depositions. 11 Dkt. 12.
–2– [respondents] are records owners of a portion of the Strip.”12
Respondents replied by stating that they “rely on the deeds evidencing
the chain of title . . . which are attached to [the] Answer and
Counterclaim.”13
• Interrogatory Nos. 15–17 asked respondents to “[s]tate the
factual basis for, identify all documents and communications that
concern, and identify all [p]ersons with knowledge concerning
[respondents’] denial of” three allegations in the petition.14
Respondents, again, referred petitioner to the title records “attached to
the Answer and Counterclaim . . . .”15
• Request for Production Nos. 1, 21, and 28 asked
respondents to produce, respectively, “[a]ll documents” that
(1) respondents relied upon in responding to the interrogatories,
(2) support respondents’ affirmative defenses, and (3) respondents
12 Resp’ts and Countercl. Pls. Thomas M. Fusco, Eileen F. Fusco, Augusto Palmieri, and Lan Wang’s Answers to Pet’r Marshall Family Props. LLC’s First Set of Interrogs. Directed to Resp’ts, Dkt. 51 Ex. 2 at 12. 13 Id. at 12, 13. 14 Id. at 19–20. The three allegations describe the Strip and historical access to the Strip and the Holland Farm from Fleming Lane, an approximately 1,000-feet-long road that connects to Delaware Route 1. See Dkt. 1 at ¶¶ 9-10, 12. 15 Dkt. 51 Ex. 2 at 19–20.
–3– intend to rely on at trial.16 Respondents stated they would “produce all
non-privileged documents” response to Request Nos. 1 and 21. As to
Request No. 28 (trial documents), they “had not identified any
documents” yet but “when such documents are identified, all such
documents would be produced.”17
On July 5, 2024, the court entered the parties’ proposed scheduling
order.18 Paragraph 1(i) of the Scheduling Order required respondents to
provide “all additions” to the joint exhibit list to petitioner by January 10,
2025, and permitted the parties to “add joint exhibits to the list in good faith
until the date of trial, provided that reasonable notice and the opportunity to
object are given to the other side.”19
On January 28, 2025, the court entered the parties’ proposed pretrial
order.20 Three paragraphs, which I quote in full, set forth the pertinent parts
of the parties’ agreement regarding the use of documents at trial:
2. The parties reserve the right to use at trial for any purpose any exhibits designated by any
16 Resp’ts and Countercl. Pls. Thomas M. Fusco, Eileen F. Fusco, Augusto Palmieri, and Lan Wang’s Answers to Pet’r Marshall Family Props. LLC’s First Reqs. for the Produc. of Docs. to Resp’ts, Dkt. 51 Ex. 3. 17 Id. 18 Order Governing Case Schedule, Dkt. 15 (“Scheduling Order”). 19 Id. ¶ 1(i). 20 See Joint Pre-Trial Stipulation and Order, Dkt. 34 (“Pretrial Order”).
–4– party on the Joint Exhibit List, to use any documents of which the Court may take judicial notice, and to use additional exhibits at trial in response to testimony or other evidence offered by the other side as rebuttal evidence and for impeachment subject, in all cases, to any objection to such use.
3. The parties reserve the right to supplement, in good faith, the Joint Exhibit List up to the beginning of trial, provided that reasonable advance notice and the opportunity to object shall be provided to the other party with respect to any additional exhibit.
4. The parties reserve the right to use documents not identified on the Joint Exhibit List for impeachment or rebuttal purposes. Documents used solely for impeachment purposes shall not be considered evidence.21
The Pretrial Order also confirmed that the dispute between the parties with
respect to record title—whose chain of deeds is superior—remained fully
joined.22
The court held a three-day trial on February 3 through 5, 2025.23 On
the final day of trial, after the conclusion of the parties’ presentations, the
21 Id. ¶¶ VIII.2–VIII.4. 22 Id. ¶¶ IV.A.1 (“Petitioner seeks a declaration that it is the true record owner of the property known as the Strip.”), IV.B.1 (“Respondents seek a declaration that (i) Mr. and Mrs. Fusco are the sole record owners of the entirety of the Fusco Property; (ii) Mr. Palmieri and Ms. Wang are the sole record owners of the entirety of the Palmieri Property and that (iii) Petitioner has no interest or rights of any kind in or over either Property.”), IV.B.3 (“Respondents seek an award of damages for the slander of title to their respective Properties in the amount proven at trial.”). 23 Dkt. 39.
–5– court and counsel began discussing what respondents’ counsel referred to as
“housekeeping things.”24 After handing over copies of property searches
discussed during respondents’ opening statement, respondents’ counsel said
he had “one last thing” and presented a property deed from 1948—a document
not on the exhibit list and not discussed at trial—that counsel wanted to admit
as a trial exhibit (“1948 Deed”).25 Respondents claimed the 1948 Deed was
referenced in their cross-examination of petitioner’s land surveyor expert
witness, Christopher Waters, and is mentioned in JX 9.26 Petitioner’s counsel
said it was their “first time seeing” the 1948 Deed and petitioner would
“reserve [its] objection . . . in briefing” because no witnesses testified about it
and petitioner’s expert did not have the opportunity to examine and testify
about it at trial.27
24 See Trial Tr. Vol. III at 661, Dkt. 43. 25 Id. at 665–66. The 1948 Deed is also referred to by the parties as Exhibit 44 and JX 44. 26 Id. at 666 (“I brought up in my cross-examination of the expert the deed which is [JX] 9. That’s already filed, Your Honor, of record. And in that deed I pointed out there was a ‘being’ clause, and it refers to a deed, and this is that deed that was referred to in that ‘being’ clause.”). The court can discern no discussion of JX 9 or the call to the 1948 Deed within JX 9 during respondents’ cross-examination of Waters. See generally Trial Tr. Vol. I at 191–236, Dkt. 41. It appears, instead, that respondents briefly referenced the call to the 1948 Deed in JX 9 during their cross- examination of Jonathan Horner, Esquire, General Counsel of non-party Schell Brothers, LLC, who testified before Waters. See id. at 123–26. The parties referred to JX 9 as the “Hastings Deed” throughout trial. 27 Trial Tr. Vol. III at 666–67, Dkt. 43.
–6– The court reserved judgment on the 1948 Deed and permitted petitioner
to address the evidentiary issue “in connection with post-trial briefing.”28 The
court noted that the issue was “presented to [the court] at the end of trial
with . . . no explanation as to why it couldn’t have been produced during the
litigation.”29 On April 16, the court conducted a site visit at the Strip with
counsel and several of the parties present.30 On May 21, the court granted the
parties’ proposed posttrial briefing schedule, with briefing taking place
between June 13 and September 26.31
On June 13, petitioner filed its Post-Trial Opening Brief.32 On July 25,
respondents filed their Post-Trial Answering Brief and Opening Brief on the
Counterclaim (“Consolidated Brief”).33 In the Consolidated Brief,
respondents relied heavily on the 1948 Deed—directly citing it eight times,
and referring to it 13 more times, to support their claim that their record title
to the Strip is superior to petitioner’s.34
28 Id. at 667. 29 Id. 30 Dkt. 44. 31 Dkt. 46. 32 Dkt. 48. 33 Dkt. 50. 34 See generally id.
–7– On August 6, petitioner filed the Motion, with an accompanying
Motion to Suspend Briefing Schedule.35 Respondents filed a consolidated
opposition to both of petitioner’s motions the next day36 and petitioner filed
its reply the day after.37 The court determined that the Motion needed to be
briefed and argued, and that the posttrial briefing schedule could not
accommodate the court’s consideration of the Motion.38 On August 8, the
court adjourned the posttrial briefing schedule, set deadlines to complete
briefing the Motion,39 and scheduled a hearing on the Motion for September
23.40
On September 9, respondents responded to the Motion.41 Petitioner
replied one week later.42 On September 23, the court heard oral argument on
the Motion43 and instructed respondents to submit a supplemental letter to the
court to answer questions the court raised at the hearing as to when
35 Dkts. 51–52. 36 Dkt. 55. 37 Dkt. 60. 38 Dkt. 62. 39 Id. 40 Dkts. 63–64. 41 Dkt. 65 (“Opposition”). 42 Dkt. 66. 43 See Dkt. 68.
–8– respondents first obtained a copy of the 1948 Deed.44 Respondents filed the
supplemental letter on October 6.45 In their letter, respondents said that they
possessed the 1948 Deed since January 20, 2025.46 The court then took the
Motion under advisement.
II. ANALYSIS
Petitioner moves to strike “all arguments regarding [the 1948 Deed] . . .
from” the Consolidated Brief under Court of Chancery Rule 26, the
Scheduling Order, and the Pretrial Order.47 Petitioner contends that
respondents did not provide the 1948 Deed in discovery or supplement their
production by the deadline set in the Scheduling Order.48 Petitioner also
contends that the Pretrial Order only permitted the parties to supplement the
Joint Exhibit List by the start of trial, and limited the parties’ use of documents
not identified in the Joint Exhibit List to impeachment or rebuttal.49 Petitioner
concludes that the 1948 Deed’s use in the Consolidated Brief violates both the
44 Id. 45 Dkt. 72. 46 Id. at 1. 47 Dkt. 33; Mot. ¶¶ 4–8. 48 Mot. ¶¶ 4–8 49 Id. ¶ 9.
–9– Scheduling Order and the Pretrial Order and must therefore be stricken from
respondents’ posttrial argument.50
Respondents vigorously dispute petitioner’s characterization of their
use of the 1948 Deed. Contrary to petitioner’s reading, they counter, the 1948
Deed is a “record being offered and used for rebuttal purposes[,]” that is also
incorporated by reference into JX 9.51 Respondents contend that the 1948
Deed is only presented in the Consolidated Brief to undermine petitioner’s use
of JX 9, so they did not violate the Pretrial Order, nor ignore their discovery
obligations.52 In the alternative, respondents say the 1948 Deed is a public
record the court can judicially notice on its own and that doing so will not
prejudice petitioner.53
To resolve this dispute, I start by explaining why respondents have
violated the applicable discovery rules. I then explain why respondents have
violated the Scheduling Order and the Pretrial Order, and why the narrow
exceptions in the Pretrial Order for the use of exhibits not disclosed before
trial do not apply. I conclude by explaining why precluding use of the 1948
Deed and directing respondents to file a new brief is the appropriate remedy.
50 Id. ¶¶ 10–22. 51 Opp’n ¶ 1. 52 See generally id. ¶¶ 2–16. 53 Id. ¶ 11.
– 10 – A. Respondents’ Untimely Identification of the 1948 Deed Violated Their Obligations Under the Discovery Rules
Under the Court of Chancery Rules, “[p]arties may obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, including the existence,
description, nature, custody, condition and location of any documents[.]” Ct.
Ch. R. 26(b)(1). Additionally, parties may serve interrogatories that “may
relate to any matters which can be inquired into under Rule 26(b)[.]” Ct. Ch.
R. 33(c). Each interrogatory must be “answered . . . fully in writing under
oath,” subject to specific objections stated by the responding party. Ct. Ch.
R. 33(b)(1). “[T]he spirit of Rule 26(b) calls for all relevant information . . .
to be brought out for inspection not only by the opposing party[,] but also for
the benefit of the [c]ourt[.]” Boxer v. Husky Oil Co., 1981 WL 15479, at *2
(Del. Ch. Nov. 9, 1981) (citing Hercules Powder Co. v. Rohm & Haas Co., 3
F.R.D. 302, 304 (D. Del. 1943)).
The Supreme Court “has long recognized the purpose of discovery is to
advance issue formulation, to assist in fact revelation and to reduce the
element of surprise at trial.” Levy v. Stern, 1996 WL 742818, at *2 (Del. Dec.
20, 1996) (citing Buchanan Serv., Inc. v. Crew, 122 A.2d 914, 917 (Del.
Super. 1956)). “‘One of a litigant’s basic obligations’ is ‘gathering and
producing responsive material in a timely fashion.’” Principal Growth
– 11 – Strategies, LLC v. AGH Parent LLC, 2025 WL 3438298, at *13 (Del. Ch.
Nov. 28, 2025) (quoting In re ExamWorks Gp., Inc. S’holder Appraisal Litig.,
2018 WL 1008439, at *9 (Del. Ch. Feb. 21, 2018)) (cleaned up).
Consequently, “Rule 26(e) requires supplementation of discovery responses
in certain instances.” OptimisCorp v. Waite, 2015 WL 357675, at *3 (Del.
Ch. Jan. 28, 2015).
A party whose response to an interrogatory was complete when made
has a duty to amend their prior response with later acquired information in
three circumstances. See Ct. Ch. R. 26(e). Relevant to the Motion, a party
has a duty to supplement if “the party knows that the response though correct
when made is no longer true and the circumstances are such that a failure to
amend the response is in substance a knowing concealment.” Ct. Ch.
R. 26(e)(3). The rule does not establish a fixed deadline for supplementing
stale discovery responses, but requires action within a reasonable period of
time under the specific circumstances of the case. OptimisCorp, 2015 WL
357675, at *11 (quoting Seasonable, BLACK’S LAW DICTIONARY (9th ed.
2009)). Courts look at when the party learned of the need to supplement, the
proximity to trial, and the potential prejudice to opposing parties. See
OptimisCorp, 2015 WL 357675, at *11 (determining whether the plaintiffs
– 12 – supplemented their responses in a reasonable time based on when they “came
into possession of the information[.]”).
Here, respondents created a discovery record that clearly identified the
evidence on which they intended to rely at trial to prove they have superior
record title to the Strip. That discovery record did not include the 1948 Deed.
Both sides prepared for trial on that discovery record and the legal theories
flowing from it. Then, after petitioner’s expert testified on the first day of
trial, but before witness testimony concluded, respondents decided the 1948
Deed might be relevant to their claim that their record title is superior to
petitioner’s.54 But respondents did not—while trial was ongoing and the
parties’ respective cases still open—amend their discovery responses or notify
petitioner and the court of their newfound intent to rely on the 1948 Deed.
Instead, they waited. Respondents did not disclose that intent until after every
witness had finished testifying and been excused and the court began
discussing “housekeeping” matters with the parties.55
This is not how litigation is supposed to be conducted. See McCaffrey
v. City of Wilm., 2014 WL 598030, at *3 (Del. Super. Jan. 31, 2014) (“The
54 Tr. of Oral Arg. on Pet’r’s Mot. to Strike (“Mot. Tr.”) 34–39, 44–49 (questioning on when respondents’ counsel determined the 1948 Deed was relevant), Dkt. 74. 55 See Trial Tr. Vol. III at 661, 666, Dkt. 44.
– 13 – days in which surprise was an acceptable way of proceeding in civil litigation
are long over.”). Respondents had the 1948 Deed two weeks before trial, even
if, as their counsel candidly admits, they did not then know its potential
relevance. But they figured it out while trial was underway and waited until
after they had finished questioning the last witness, and everyone had moved
on to housekeeping matters, before disclosing their intent to rely on the 1948
Deed.56 I find that, under the circumstances of this case, respondents’ actions
amount to knowing concealment in violation of Rule 26(e).57
B. Respondents’ Untimely Disclosure of the 1948 Deed Violates the Scheduling Order and Pretrial Order
Respondents’ posttrial use of the 1948 Deed violates the requirement
in the Scheduling Order and the Pretrial Order that additions to the parties’
joint exhibit list be done before trial.58 Respondents do not contest this.
Instead, respondents argue that they did not need to disclose their reliance on
the 1948 Deed until after witness testimony was concluded under any of three
56 Contrast this with the speed with respondents notified petitioner that a difficult- to-locate witness had responded to their trial subpoena. See Trial Tr. Vol. I at 7 (“We immediately told counsel that we had found him.”), 11 (“[A]s soon as we had the knowledge where he was, we gave it to counsel, Your Honor, immediately.”), Dkt. 41. 57 See A. Schulman. Inc. v. Citadel Plastic Hldgs., LLC, 2018 WL 784734, at *4 (Del. Ch. Feb. 7, 2018) (ORDER) (“failing to provide a timely updated response” amounted to knowing concealment); OptimisCorp, 2015 WL 357675, at *11. 58 Scheduling Order ¶ 1(i); Pretrial Order ¶ VIII.3.
– 14 – exceptions in the Pretrial Order—because they are using the 1948 Deed for
impeachment purposes, they are using it for rebuttal purposes, or I am allowed
to take judicial notice of the 1948 Deed. I reject all three rationales.
1. Respondents Did Not Use the 1948 Deed to Impeach Any Witness
Respondents argue their post-trial use of the 1948 Deed is permissible
under the Pretrial Order because it “impeaches” the trial testimony of
petitioner’s land surveyor expert by showing that he “relied on a defective
interpretation of JX-9.”59 This is incorrect.
First, as impeachment evidence the 1948 Deed is untimely. The Pretrial
Order allows the parties to use impeachment evidence “at trial.”60
Respondents are seeking to use the 1948 Deed only in connection with post-
trial briefing.
Second, respondents did not use the 1948 Deed as impeachment
evidence. Impeachment is “the act of discrediting a witness” or “the act of
challenging the accuracy or authenticity of evidence.”61 “The purpose of
59 Opp’n ¶ 10. 60 Pretrial Order ¶ VIII.2. The separate reference to the use of documents for impeachment purposes in paragraph VIII.4 of the Pretrial Order did not eliminate paragraph VIII.2’s “at trial” limitation and give the parties a free-floating right to use, for the first time in post-trial briefing, an exhibit never presented to any witness. 61 Impeachment, BLACK’S LAW DICTIONARY (12th ed. 2025).
– 15 – impeachment is to destroy credibility, not to prove the facts stated in the
impeaching statement.”62 Here, respondents did not show the 1948 Deed to
any witness at trial, including petitioner’s expert, in order to discredit the
expert’s testimony or undermine his credibility. A document never shown or
mentioned to petitioner’s expert or other witnesses, nor disclosed to petitioner
or the court until a discussion of administrative matters after the conclusion
of witness testimony, is not “undermin[ing] Petitioner’s Expert through the
trial process” as respondents assert.63
Third, the Pretrial Order also states that “[d]ocuments used solely for
impeachment purposes shall not be considered evidence.” 64 If a document is
being used only for impeachment purposes, the party planning to use it need
not disclose it in advance, but then they cannot rely on it as affirmative
evidence to support their claims. If the party wants to use it both to impeach
and for evidentiary purposes, then they must follow the process for admitting
it into the record. Here, respondents attempt to do both—use the 1948 Deed
to discredit Waters’ testimony and use it as evidence supporting their claim
that they have record title to the Strip.
62 81 AM. JUR. 2D Witnesses § 770 (citations omitted). 63 Opp’n ¶ 15 n.16. 64 Pretrial Order ¶ VIII.4.
– 16 – 2. Respondents Are Not Using the 1948 Deed Solely as Rebuttal Evidence
Respondents also argue their post-trial use of the 1948 Deed is
permissible under the Pretrial Order because “it is being used to rebut the
claim in Petitioner’s case-in-chief that JX-9 is somehow defective.”65 This is
incorrect.
First, as with impeachment, the 1948 Deed is untimely as rebuttal
evidence. The Pretrial Order allows the parties to use rebuttal evidence “at
trial.”66 Respondents are seeking to use the 1948 Deed only in connection
with post-trial briefing.
Second, respondents are using the 1948 Deed as affirmative evidence
that they have record title to the Strip, a proposition for which respondents
bear the burden of proof.67 Respondents’ posttrial brief shows this. In the
factual background, respondents introduce the 1948 Deed to affirmatively
65 Opp’n ¶ 10. 66 Pretrial Order ¶ VIII.2. As with impeachment, the separate reference to rebuttal evidence in paragraph VIII.4 of the Pretrial Order did not eliminate paragraph VIII.2’s “at trial” limitation. 67 See, e.g., State v. Sweetwater Point, LLC, 2017 WL 2257377, at *8 (Del. Ch. May 23, 2017) (“In this action to determine which of the two competing parties has a superior claim . . . [e]ach party must establish the strength of its own title first, rather than relying solely on flaws in the competing chain of title.”) (citing Smith v. Smith, 622 A.2d 642, 646 (Del. 1993) and 65 AM. JUR. 2D Quieting Title § 74).
– 17 – establish the strength of their claim of record title to the Strip.68 Respondents
do not use the 1948 Deed to contradict any evidence petitioner relied on at
trial or in its opening brief until page 17.69 On page 30, respondents again
assert their interest in the Strip began in 1948, based on the 1948 Deed.70 And
in the argument section, respondents rely on the 1948 Deed to support their
contention they hold record title to the strip.71 Respondents do not attempt to
contradict petitioner’s case for another four pages, and do not use the 1948
Deed in that contradiction for another two.72 The remaining references to the
1948 Deed are used to support respondents’ claim of adverse possession—not
to “disprove or contradict” or challenge “the accuracy or authenticity” of
petitioner’s evidence or witness testimony.
As the court has observed, parties include carveouts for rebuttal
evidence in pretrial orders because “it is difficult to know in advance whether
and what rebuttal evidence will be required.” See In re Oxbow Carbon LLC
Unitholder Litig., 2017 WL 3207155, at *4 (Del. Ch. July 28, 2017)
68 See Consol. Br. 7 (“The original deed to the Hastings Family Farm was given to Jewell and Caddie Hastings in 1948[.]”). 69 See generally Consol. Br. 8–17. 70 Id. at 30 n.84. 71 Id. at 32–35. 72 Id. at 36–39.
– 18 – (discussing rebuttal witnesses). Respondents cannot claim any difficulty here.
They knew well before trial what evidence petitioner was relying on to deny
respondents’ affirmative claim that they had good record title to the Strip, and
what evidence they would need to defeat petitioner’s denial.73
3. The Court Cannot Take Judicial Notice of the 1948 Deed
Respondents also argue (1) their post-trial use of the 1948 Deed in an
affirmative capacity is permissible because the Pretrial Order includes a
carveout for documents capable of being judicially noticed,74 and (2) I can
take judicial notice of the 1948 Deed as a public record.75 This, too, is
Under Delaware Rule of Evidence 201(b)(2), “[t]he court may
judicially notice a fact that is not subject to reasonable dispute” if the fact “can
be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” D.R.E. 201(b)(2). Here, the fact for which
respondents are asking the court to take judicial notice is that the 1948 Deed’s
73 Respondents’ effort to blame petitioner for the fact that they did not learn the basis for petitioner’s argument about the Hastings Deed (JX 9) until petitioner’s expert testified during the first day of trial, see Mot. Tr. 35–36, is misguided. Respondents chose to take no discovery. Parties who ask no questions, seek no documents, and take no depositions during discovery cannot complain when they do not learn the answers until trial. 74 Pretrial Order ¶ VIII.2. 75 Opp’n ¶¶ 10–14.
– 19 – metes and bounds description is correct and includes the Strip.76 But whether
the 1948 Deed’s metes and bounds description is correct and includes the Strip
is not a fact that can be determined from a source—the 1948 Deed—whose
accuracy cannot reasonably be questioned. If the 1948 Deed is accurate and
includes the Strip, then it would appear to conflict with petitioner’s chain of
deeds, which also claims to cover the Strip. Neither negates the other; it
simply means that the Strip is the intersection—the vesica piscis—in a Venn
diagram that has petitioner’s chain of title in one circle and respondent’s chain
of title (including the 1948 Deed) in the other. Both cannot be correct—
somebody owns the Strip—so the accuracy of the 1948 Deed, by the very
claims at issue in this litigation, is subject to reasonable dispute, making
judicial notice inappropriate.
It is one thing to take judicial notice that certain words are written in
the 1948 Deed, and another thing entirely to take judicial notice that those
words are true. Respondents insist the court can do both here, but the law says
otherwise. See, e.g., In re Rural Metro Corp. S’holders Litig., 2013 WL
6634009, at *7–8 (Del. Ch. Dec. 17, 2013) (discussing In re Santa Fe Pac.
Corp. S’holder Litig., 669 A.2d 59 (Del. 1995), and explaining that the court
could take judicial notice of a declaration “to establish when it was filed or to
76 Id. ¶¶ 11–13.
– 20 – identify the statements that [declarant] made” but it could not take judicial
notice of that declaration “to establish the truth of its contents”); Indem. Ins.
Corp., RPG v. Cohen, 2018 WL 487246, at *2 (Del. Ch. Jan. 18, 2018)
(“[W]here a filing’s contents are subject to reasonable dispute, include views
and opinions, or could be contested with the aid of discovery, the court cannot
take judicial notice under Rule 201 for the purpose of accepting the statements
as adjudicative fact.”).
The untenability of respondents’ insistence that the court can take
judicial notice of the 1948 Deed is all the more apparent in light of Rule 201’s
factfinding impact. As the Supreme Court has explained, “the effect of taking
judicial notice under Rule 201 is to preclude a party from introducing contrary
evidence and[,] in effect, direct[] a verdict against him as to the fact noticed,
[so] the fact must be one that only an unreasonable person would insist on
disputing.” Lebanon Cnty. Emps.’ Ret. Fund v. Collis, 311 A.3d 773, 799
(Del. 2023) (quoting U.S. v. Jones, 29 F.3d 1549, 1553–55 (11th Cir. 1994)).
In other words, “[i]ndisputability is a prerequisite” to invoking Rule 201. Id.
The 1948 Deed—for the purposes respondents want the court to consider it—
does not qualify for judicial notice by any reasonable measure.
– 21 – C. Exclusion of the 1948 Deed is the Appropriate Remedy
Having determined that respondents’ untimely disclosure of the 1948
Deed violated their discovery obligations, the Scheduling Order, and the
Pretrial Order, the court turns to the proper remedy for the violation.
Petitioner asks the court to order respondents to file a new brief excluding all
arguments regarding the 1948 Deed.77 Respondents do not offer an alternative
solution in their opposition.78
The well-established policy underlying discovery procedures is that “a
trial decision should result from a disinterested search for truth from all the
available evidence rather than tactical maneuvers based on the calculated
manipulation of evidence and its production.” In re ExamWorks Gp., Inc.
S’holder Appraisal Litig., 2018 WL 1008439, at *5 (Del. Ch. Feb. 21, 2018)
(quoting Hoey v. Hawkins, 332 A.2d 403, 405 (Del. 1975)). “A party that
disregards the provisions in a [court] order that govern discovery is engaging
in discovery abuse.” In re ExamWorks, 2018 WL 1008439, at *6. And “[a]
trial judge has broad discretion to impose sanctions for failure to abide by its
orders.” Terramar Retail Centers, LLC v. Marion #2-Seaport Tr. U/A/D June
77 Mot. ¶ 13. 78 See generally Opp’n.
– 22 – 21, 2002, 2018 WL 6331622, at *9 (Del. Ch. Dec. 4, 2018) (quoting Gallagher
v. Long, 940 A.2d 945 (Del. 2007) (TABLE)).
“In the event this [c]ourt determines that sanctions for discovery
abuses are appropriate, the sanction must be tailored to the culpability of the
wrongdoer and the harm suffered by the complaining party.” Cartanza v.
Cartanza, 2013 WL 1615767, at *2 (Del. Ch. Apr. 16, 2013) (citing Beard
Rsch., Inc. v. Kates, 981 A.2d 1175, 1189 (Del. Ch. 2009)). “[T]ypical
remedies for late production are to allow additional discovery or to preclude
the use of the belatedly produced material.” In re ExamWorks, 2018 WL
1008439, at *7. “Late production provides grounds for excluding the
evidence.” IQ Hldgs., Inc. v. AM. Com. Lines Inc., 2012 WL 3877790, at * 2
(Del. Ch. Aug. 30, 2012) (citing Concord Towers, Inc. v. Long, 348 A.2d 325,
326 (Del. 1975)). But the court must “balance its duty to admit all relevant
and material evidence with its duty to enforce standards of fairness and the
Rules[.]” Concord Towers, 348 A.2d at 326.
There are two possible remedies here for respondents’ untimely
disclosure of the 1948 Deed: (1) exclude the 1948 Deed and have the parties
proceed on the basis of the evidentiary record assembled during discovery and
presented to the court during three days of trial; or (2) admit the 1948 Deed
– 23 – but reopen the record to allow the parties to take additional discovery on the
parties’ respective claimed chains of title.
As the factfinder, I prefer to see all evidence relevant to my decision.
But litigation is not an unending search for the truth, and I do not think
reopening the record is the appropriate, equitable, or just outcome for this
case. It would massively expand the scope of discovery on the parties’
claimed chains of title to the Strip. The Holland Farm deed, the foundation
for petitioner’s claim of record title to the Strip, goes back to 1958.79 The
1948 Deed, now the foundation for respondents’ claim of record title to the
Strip, goes back (of course) to 1948. The parties would need to trace each
chain of deeds—and potentially deeds for surrounding properties—further
back in time, as far as would be needed to finally resolve any dispute over
record ownership of the Strip.80 This might include looking not just for deeds,
but for other documents relevant to the parties’ competing ownership claims
79 See JX 1. 80 Petitioner’s counsel made these points during argument on the Motion. See Mot. Tr. 16–17 (“[W]e’d have to run the title back further on the Holland Farm, right, so there [are] more documents there . . . . But that doesn’t answer the question necessarily . . . . [So] we need to run that deed as far back as we can—at least to the 1900s, turn of the century. We would want to do the same for the Hastings property. More documents, probably, . . . more materials, but also a different expert . . . . Now we’re going deep into the title records . . . . [D]epending upon what the title descriptions show from the Holland Farm and the Hastings Farm, you might need to run title for the adjoining properties to tie off things because there is a good chance that some of those deeds are going to raise other questions.”).
– 24 – of record title to the Strip.81 And as the court showed in Sweetwater Point,
the further back title searches go, the harder it gets to determine anything with
precision.82 And once that expanded discovery record is created, there would
be the additional trial days with additional witnesses and perhaps additional
experts to help the court begin to make sense of that record.
All of that is too much for this case. Moreover, neither side has asked
me to reopen discovery if I grant the Motion. Petitioner persuasively argues
that doing so would prejudice petitioner, who prepared for, paid for, and has
tried a case based on the record assembled during discovery.83 Respondents,
reject the option outright.84 This leaves excluding the 1948 Deed from the
evidentiary record as the remedy for respondents’ failure to follow the
discovery rules, the Scheduling Order, and the Pretrial Order. Exclusion is a
well-recognized remedy for the untimely disclosure of relevant information,
particularly at this late stage of a case, so that is the remedy the court orders.
81 See State v. Sweetwater Point, LLC, 2017 WL 2257377, at *9–23 (Del. Ch. May 23, 2017) (tracing competing chains of title back to the 1800s through deeds, wills, assessment records, court reports, and other documents). 82 Id. 83 Mot. ¶¶ 19–21; Dkt. 66 ¶ 17; Mot. Tr. 17–24. 84 Opp’n ¶ 15 n.20 (arguing the court should not allow petitioner to supplement the record because petitioner’s “alleged harm is of its own chosen trial strategy”).
– 25 – III. CONCLUSION
I grant petitioner’s Motion to Strike and exclude the 1948 Deed from
the evidentiary record. Respondents must file an amended Post-Trial
Answering Brief and Opening Brief on the Counterclaim by February 27,
2026. After that, petitioner must file its combined reply and answering brief
within 30 days of the filing of respondents’ amended answering and opening
brief, and respondents must file their reply brief within 30 days of the filing
of petitioner’s combined reply and answering brief. The parties must contact
chambers after petitioner files its combined reply and answering brief to
schedule posttrial argument.
This is a Report under Court of Chancery Rule 144(b)(1). Under Court
of Chancery Rule 144(c)(2)(A), exceptions to this ruling are stayed pending
issuance of a final report in this case.
– 26 –