                                 SUPERIOR COURT
                                      OF THE
                                STATE OF DELAWARE

ABIGAIL M. LEGROW                                 NEW CASTLE COUNTY COURTHOUSE
            JUDGE                                  500 North King Street, Suite 10400
                                                     Wilmington, DE 19801-3733
                                                       Telephone (302) 255-0669


                                  March 1, 2016


Nicholas D. Mozal, Esquire                  Michael J. Logullo, Esquire
100 S. West Street, Suite 400               Rawle & Henderson LLP
Wilmington, DE 19801                        300 Delaware Avenue, Suite 1015
                                            P.O. Box 588
Armand J. Della Porta, Esquire              Wilmington, DE 19899
Jessica L. Tyler, Esquire
Marshall Dennehey Warner Coleman
& Goggin
1220 North Market Street, 5th Floor
P.O. Box 8888
Wilmington, DE 19899

              RE:   AT&T Corporation v. Carrier Corporation, et al.
                    C.A. No. N14C-05-206 AML

Dear Counsel:

       Plaintiff AT&T Corporation (“AT&T”) alleges in this action that two

HVAC systems sold and installed by Defendant National H.V.A.C. Service Ltd.,

L.P. (“National”) were installed negligently in AT&T’s commercial building in

New Castle County, Delaware. On May 23, 2104, AT&T filed this action, alleging

claims for breach of express warranty and negligence against National and

negligent manufacturing against Defendant Carrier Corporation (“Carrier”), who
C.A. No. N14C-05-206 AML
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Page 2


manufactured the systems. The Court previously denied National’s motion to

dismiss and granted National’s motion for leave to file a third party complaint. I

now turn to various discovery motions filed by the parties.

Background

        AT&T propounded its second interrogatories, which were served on

February 16, 2015 (the “Interrogatories”), and its second and third requests for

production of documents or things directed to National, which were served on

February 16, 2015 and March 20, 2015, respectively (the “Requests”). National’s

responses were due March 18, 2015 and April 20, 2015.1 On March 20, 2015,

April 15, 2015, and May 15, 2015, AT&T inquired of National’s counsel when

responses would be received. On May 18, 2015, National’s counsel responded that

he was “not sure about the delay” and would “follow up with [his] client.”2 On

June 9, 2015, AT&T notified National that if a response to the discovery requests

was not received before June 11th, AT&T would file a motion to compel. 3

National responded to the Requests on June 11, 2015 but did not respond to the




1
  Super. Ct. Civ. R. 34(b).
2
  Certification of Nicholas D. Mozal, Esq. Ex. G (“Cert.”).
3
  Cert. Ex. H.
C.A. No. N14C-05-206 AML
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Page 3


Interrogatories. On August 14, 2015 and August 17, 2015, AT&T made two more

inquiries. 4 National finally responded to the Interrogatories on August 20, 2015.

          AT&T then sent at least five letters to National regarding alleged

deficiencies in its responses to the Interrogatories and Requests. 5 When those

efforts failed to resolve AT&T’s concerns, AT&T filed a motion to compel

supplemental responses to the allegedly deficient responses.

          In the midst of the parties’ disputes regarding written discovery, efforts also

were underway to schedule numerous depositions. Although most depositions

were scheduled, National resisted efforts to schedule the deposition of its corporate

representative under Superior Court Rule 30(b)(6). AT&T first requested the

30(b)(6) deposition on March 13, 2015. National delayed in scheduling and then

took the position that the deposition should not be scheduled unless and until

National’s motion to dismiss was denied.

          National filed a motion for protective order against further discovery on

August 25, 2015. AT&T filed a cross-motion to compel the 30(b)(6) deposition on

September 29, 2015. In its motion for protective order, National took the position

that discovery should be stayed until National’s pending motion to dismiss was


4
    Cert. Ex. J.
5
    Cert. Ex. K.
C.A. No. N14C-05-206 AML
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resolved, and, if the motion to dismiss was denied, an additional party—Johnson

Controls, Inc.—was added to the proceedings. 6 National reasoned that delaying

discovery, including the 30(b)(6) deposition, would avoid unnecessary or

redundant discovery. In response, and in its motion to compel the deposition,

AT&T argued that National failed to raise the issue of adding a third party until

after the time to answer the amended complaint had run and that waiting until the

motion to dismiss was resolved is another example of National “continuing its

practice of delay in this case by withholding discovery from the parties.”7

       In its motion to compel supplemental discovery responses, AT&T argued

National must provide the requested versions and copies of contracts it entered into

with AT&T between January 1, 2012 and July 1, 2012.                          AT&T also sought

supplemental responses to Interrogatory Nos. 3-7, which generally sought details

surrounding National offering an alarm for the system’s drip pan and whether

National believed the drip pan was adequate to remove the condensation from the

Carrier HVAC system. 8


6
  National’s Mot. for Protective Order ¶ 6. Allegedly, Johnson Controls was the property manager for
AT&T’s commercial building. Johnson Controls purportedly coordinated with National for the purchase
and installation of the HVAC system on behalf of AT&T. AT&T’s Resp. to National’s Mot. for Leave to
File a Third Party Compl. ¶ 2.
7
  AT&T’s Mot. to Compel Dep. of Corp. Rep. ¶¶ 7-8.
8
  AT&T vaguely argues National’s responses to the Requests have been “elusive and do not state whether
it has produced all responsive documents in its possession,” but AT&T does not provide National’s
C.A. No. N14C-05-206 AML
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The 30(b)(6) Deposition

        National’s position regarding continued discovery, including the deposition

of its corporate representative, is incongruous to National’s general willingness to

engage in substantial discovery before the motion to dismiss was resolved and the

third-party complaint filed. Whatever the merit of National’s motion for protective

order, however, the passage of time 9 and the filing of the third-party complaint 10

favor waiting an additional limited period of time until Johnson Controls enters its

appearance.       Once Johnson Controls responds to the complaint – even if the

response is a motion to dismiss – the deposition of National’s 30(b)(6) witness

shall be scheduled and held within four weeks of such response, and the parties

shall continue other discovery promptly. More than enough time has passed since

this action was filed.

AT&T’s Motion to Compel Supplemental Responses to Discovery

        National’s response to AT&T’s motion to compel largely was non-

responsive and failed to address the content of National’s discovery or its


responses to the Requests or any evidence that the parties discussed anything other than the production of
the contracts described above. Aside from addressing the issue of whether National must produce the
contracts in its possession, custody, or control, I cannot address the sufficiency of any other responses to
the Requests, as AT&T has not provided an adequate record on which to do so.
9
  The motion to dismiss was denied on January 19, 2016. (D.I. # 123).
10
   National’s Answer to the Am. Compl. with Third Party Compl. Against Johnson Controls, Inc. (DI.
#124).
C.A. No. N14C-05-206 AML
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unexplained five-month delay in responding to the Interrogatories. Rather than

address AT&T’s contention that National’s discovery responses were deficient,

National instead raised a vague unclean hands defense, asserting, in substance, that

AT&T also had engaged in discovery violations. Such a “response” is neither

helpful nor productive.

        By failing to defend in any way its responses to AT&T’s Interrogatories,

National effectively concedes the merit of AT&T’s position. Even if National had

not conceded as much, I have reviewed the responses and find that National’s

responses to Interrogatory Nos. 3, 4, and 7 are non-responsive, violating Superior

Court Civil Rule 33. Interrogatory No. 3 asked National to state “whether in

June of 2012, National offered for installation an alarm for the overflow of a drip

pan.”    National’s response that it “did not offer any equipment beyond that

specified and installed by the manufacturer at the factory” is evasive and does not

fairly address the question. Interrogatory No. 4 inquired as to “why an alarm

relating to the overflow of a drip pan was not offered to AT&T before

June 16, 2012 if one was needed for installation with the Carrier HVAC system

you installed.” National’s answer referred to drip pans but did not address alarms,

which was the question’s focus.      Finally, Interrogatory No. 7 asked whether
C.A. No. N14C-05-206 AML
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National “had any reason to believe that the drip pan that came with the

Carrier HVAC System was not adequate to safely remove the condensation from

the Carrier HVAC System.” National refused to respond on the basis that “it seeks

disclosure of expert opinions.” The question did not seek an expert opinion, but

rather inquired into National’s knowledge, if any, at “any time before

June 17, 2012.”

           AT&T’s motion to compel supplemental responses to Interrogatory Nos. 5

and 6, on the other hand, is denied. The interrogatory instructions do not ask for an

explanation of the basis for a response. That one or more witnesses may have

testified in a manner arguably inconsistent with a response does not make the

response incomplete.

           As for the Requests, National must provide items that are in its “possession,

custody, and control.” 11 The fact that AT&T already may have the requested

contracts does not excuse National from its discovery obligations, particularly

since what contracts National has in its possession may be directly relevant to one

or more of the disputes in this case.            Accordingly, National shall provide

responsive documents to the Requests Nos. 2 and 3 and supplemental responses to

Interrogatory Nos. 3, 4, and 7, within ten days of this letter’s date.
11
     Super. Ct. Civ. R. 34(a)(1).
C.A. No. N14C-05-206 AML
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       Once Johnson Controls has responded to the third-party complaint, counsel

shall contact my chambers to obtain a new trial date, after which a trial scheduling

order will be issued.

       IT IS SO ORDERED.

                                             Sincerely,

                                             /s/ Abigail M. LeGrow

                                             Abigail M. LeGrow, Judge



AML:cmb
Original to Prothonotary
