Opinion
C.A. No. S15C-05-006 RFS
02-14-2017
Re: Nancy Hammer v. Howard Medical, Inc., Howard Industries, Inc.
RICHARD F. STOKES JUDGE Nancy Hammer
P.O. Box 492
Nassau, Delaware 19969 Dennis L. Schrader, Esq.
R. Eric Hacker, Esq.
Morris James Wilson Halbrook & Bayard, LLP
107 W. Market Street
P.O. Box 690
Georgetown, Delaware 19947 Upon Defendants' Motion for Contempt and to Compel Discovery.
Denied. Dear Parties:
On July 25, 2016, Defendants Howard Medical, Inc. and Howard Industries, Inc. (collectively "Howard") served Plaintiff Nancy Hammer ("Hammer") to appear at a deposition scheduled for Tuesday, August 9, 2016. Under the Scheduling Order, all discovery was to be completed on or before August 31, 2016.
On Friday, August 5, 2016, the parties appeared in Court on various pending motions. The subject of Hammer's deposition was discussed. Hammer personally had advised Howard that August 9, 2016 was not an available date as were times in July. Difficulties in scheduling the deposition by the discovery expiration date were a major concern. Hammer wanted to take Linda and William Howard's deposition in Delaware as part of this process. As shown from the emails exchanged between the parties, Hammer would not agree to be deposed unless the Howards' deposition was scheduled as well. Hammer was of the mind that the Howards' deposition would have to take place in Delaware, not Mississippi, where Howard is incorporated. Other times after August 9, 2016 were mentioned, but Hammer and Howard had difficulty in modifying the Scheduling Order. At this hearing Hammer was advised by the Court that, unless a mutually acceptable date was reached for the deposition, she would have to apply for a protective order to avoid a motion to compel and a sanction where she could be placed in contempt.
Transcript of August 5, 2016 Hearing at 49:17-23.
Id. at 50:5-23.
Defs.' Mot. Compel Contempt Compel Disc. 4, Ex. E.
Compl. 1; Notice Dep. William Howard 1; Notice Dep. Linda Howard 1.
Id. at 3, Ex. C.
Transcript of August 5, 2016 Hearing at 51:15-23.
Hammer failed to seek a protective order and failed to appear at the deposition on August 9, 2016. Thereafter, Hammer took the position that the failure of Defendants' counsel to appear at an earlier deposition for non-parties was somehow an excuse. Simply put, non-parties residing in Mississippi did not appear and could not be compelled to appear. Hammer needlessly lost money, which was a self-inflicted wound. She claimed that this turn of events justified her failure to appear at the August 9th deposition. However, Hammer has responsibilities as a party to appear for her deposition and was told to file a protective order to avoid the present situation. The record reflects:
Transcript of December 2, 2016 Hearing at 30:11-20.
Letter from Judge Richard F. Stokes to Nancy Hammer (July 12, 2016 (on file with the Delaware Superior Court).
Id.
THE COURT: All right, this is how this is going to have to work. They have it [Hammer's deposition] scheduled for the 9th. If you feel this is something that you, for whatever reason, should not do then you should file a motion for a protective order. You need to do that before the 9th. If you don't show up on the 9th you're going to have difficulty.
Transcript of August 5, 2016 Hearing at 51:15-22.
Hammer accuses Defendants' counsel of improper tactics for scheduling a deposition knowing that she would not attend. This assertion is not persuasive. Given the nature of the litigation, Hammer had reason to know that the bona fides or not of her unavailability could reasonably be questioned. A work schedule may or may not be an adequate excuse. This subject would be one of the factors to be considered in the protective order setting.
Pl.'s Resp. Defs.' Mot. Contempt Compel Disc. 3.
At the December 2, 2016 hearing, Hammer claimed that she did not understand the protective order procedures available under Rule 26. I note that on August 8, 2016, Hammer mailed a Motion to Quash this deposition scheduled for September 9, 2016. It was mailed to Howard. There is an additional three day time for its effect. The docket reflects that the Motion was docketed on August 10, 2016. Under the circumstances, Hammer's mailing of the Motion on August 8, 2016 militates against the entry of an order that would place Hammer in contempt. Howard has withdrawn a request that an order compelling Hammer's appearance be entered, given that the discovery date in the Scheduling Order has passed.
Transcript of December 2, 2016 Hearing at 40:1-3.
Super. Ct. Civ. R. 6(e). --------
Considering the foregoing, the Motion is DENIED .
IT IS SO ORDERED.
Very truly yours,
/s/_________
Richard F. Stokes, Judge Cc: Prothonotary
Nancy Hammer
Dennis Schrader, Esq.
R. Eric Hacker, Esq.