Hammer v. Howard Medical, Inc. ( 2017 )

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
2
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).
5
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.
8
“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
10
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
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SUSSEX COUNTY (.`.()URTH()USE
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RICHARD l". S'l`()l\'lib`
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April 24` 20|7
l)enni.\' l.. Schradel. lisq.
R. liric llaclicnlon count
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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 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, |~`..
3
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¢'244 F.R.D. 179_ 105 (S.l).N.Y. 2()07)("'l`he test for production ot`documents is control
not loeatioii. . . Under Rule 34_ `eon|rtil does not ri.'quinl that thc party have legal ownership or actual physical
at issues; r:il|iei'. rlnruiiici\ts are considered to bc under a party`s control when that party
documents from a non-party to the action."`)(intemal
1931".1{.1).(133,(136(l). Minii. 2()00)("11\ practiee. liowevcr.
arty has practical ability to obtain the
ons oiiiittcd); U..\'.
possessic_ui o|` the doruiiii:uts
has the rightl authority. or practical ability tn obtain llie
citations omitted); l’rr)l . ‘(
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).
5
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