         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 STATE OF DELAWARE,                       §
 DEPARTMENT OF NATURAL                    §
 RESOURCES &                              §   No. 212, 2020
 ENVIRONMENTAL CONTROL,                   §
                                          §   Court Below—Superior Court
       Third Party Petitioner Below,      §   of the State of Delaware
       Appellant,                         §
                                          §   C.A. No. S18C-06-009
       v.                                 §
                                          §
 GARY and ANNA-MARIE                      §
 CUPPELS,                                 §
                                          §
       Plaintiffs Below,                  §
       Appellee.                          §

                              Submitted: July 17, 2020
                               Decided: July 28, 2020

Before VAUGHN, TRAYNOR, and MONTGOMERY-REEVES, Justices.

                                       ORDER

      Upon consideration of the notice of interlocutory appeal and the supplemental

notice of interlocutory appeal, it appears to the Court that:

      (1)     The appellant-third party petitioner below, the State of Delaware,

Department of Natural Resources & Environmental Control (“DNREC”), has

petitioned this Court under Supreme Court Rule 42 to accept an interlocutory appeal

from a Superior Court opinion and order, dated April 14, 2020, denying its motion
to quash subpoenas served by the plaintiffs below-appellees, Gary and Anna-Marie

Cuppels.1

         (2)    This is one of several cases arising from defendant below-appellee

Mountaire Farms of Delaware, Inc.’s (“Mountaire Delaware”) disposal of waste at

its poultry processing plant in Millsboro. In this class-action lawsuit, the Cuppels

allege that they suffered property damage and personal injuries as a result of

Mountaire Delaware’s improper and unlawful waste disposal. The Cuppels have

asserted tort claims against Mountaire Delaware, Mountaire Corporation, and

Mountaire Farms Inc. (collectively “Mountaire”).

         (3)    The other cases were filed by DNREC. In DNREC v. Mountaire Farms

of Delaware, Inc., C.A. No. 18-838 (D. Del.) (“Federal DNREC Action”), DNREC

alleged that Mountaire Delaware violated federal environmental laws in its disposal

of waste. DNREC informed the District Court in late 2019 that DNREC and

Mountaire had executed a settlement agreement and filed the agreement for entry as

a consent decree. The Cuppels, who were permitted to intervene in the Federal

DNREC Action, object to the proposed consent decree.

         (4)    In DNREC v. Mountaire Farms of Delaware, Inc., C.A. No. S18M-06-

002 (“State DNREC Action”), DNREC alleged that Mountaire Delaware violated

State environmental laws and permits in its disposal of waste. DNREC filed a


1
    Cuppels v. Mountaire Corp., 2020 WL 1866867 (Del. Super. Ct. Apr. 14, 2020).
                                               2
consent decree with the complaint. The Cuppels moved to intervene in the State

DNREC Action, but the Superior Court stayed that case pending resolution of the

Federal DNREC Action without deciding the motion to intervene.2

       (5)    In the course of this litigation, the Cuppels served a subpoena upon

DNREC for all documents from July 1, 2017 to the present, in the possession or

control of five DNREC employees, that related to the Millsboro plant’s wastewater,

sludge facilities, groundwater, and nearby wells. The Cuppels also served subpoenas

for depositions of the five DNREC employees named in the document subpoena.

       (6)    DNREC filed motions to quash the subpoenas or in the alternative for

a protective order. In the motions, DNREC argued that: (i) it had already produced

many documents from before July 1, 2017 in response to requests that the Cuppels

made under the Delaware Freedom of Information Act (“FOIA”), 29 Del. C. § 10001

et seq.; (ii) the subpoenas sought investigatory files and information protected from

disclosure by § 10002(l)(3) and D.R.E. 508(b); (iii) it should not be compelled to

produce information protected by the attorney-client privilege, work product

doctrine, or D.R.E. 408; and (iv) the subpoena was unduly burdensome to DNREC.

The Cuppels opposed the motions.




2
 This Court refused DNREC’s interlocutory appeal of the Superior Court order staying the State
DNREC Action. Dep’t of Nat. Res. & Envtl. Control v. Mountaire Farms of Del., Inc., 2019 WL
2323906 (Del. May 31, 2019).
                                              3
       (7)    The Superior Court held a hearing on the motions to quash on April 8,

2020. At the conclusion of the hearing, the Superior Court denied the motions. On

April 14, 2020, the Superior Court issued an opinion further explaining its reasoning

for the denial of the motions.3

       (8)    As to DNREC’s objection based on the FOIA exemption for

investigatory files under 29 Del. C. § 10002(l)(3) and government privileges under

D.R.E. 508, the Superior Court noted that a similar argument was rejected in State

Dep’t of Transportation v. Figg Bridge Engineers, Inc.4 and found that the argument

was contrary to the DNREC’s broad disclosure requirements to the public under 7

Del. C. § 6014.5 The Superior Court recognized that D.R.E. 408 protects settlement

discussions from admission at trial, but also stated that D.R.E. 408 does not prohibit

discovery of such discussions.6 In the absence of a privilege log, the Superior Court

was unwilling to address the attorney-client privilege and work-product claims, but

encouraged the parties to bring any specific issues to the court’s attention in the

future.7 Again relying on § 6014, the Superior Court rejected DNREC’s undue-

burden argument.8




3
  Cuppels, 2020 WL 1866867, at *1.
4
  79 A.3d 259 (Del. Super. Ct. 2013).
5
  Cuppels, 2020 WL 1866867, at *1-2.
6
  Id. at *2.
7
  Id.
8
  Id.
                                          4
       (9)     On June 29, 2020,9 DNREC filed an application for certification of an

interlocutory appeal. Mountaire supported the application. The Cuppels opposed

the application. On July 14, 2020, the Superior Court denied the application for

certification.10

       (10) In denying the application for certification, the Superior Court

questioned whether a non-party may pursue an interlocutory appeal, but proceeded

to consider the Rule 42 criteria.11 The Superior Court acknowledged that the

discoverability of the subpoenaed information was an important and substantial issue

to DNREC, but expressed concern that appellate review would unduly delay the

litigation to the detriment of the parties.12 As to the Rule 42(b)(iii) criteria, the

Superior Court found that the interlocutory order raised an issue of first impression

(Rule 42(b)(iii)(A)) and related to the construction of a statute (Rule 42(b)(iii)(C)),

which weighed in favor of interlocutory review.13 The Superior Court found that

review of the interlocutory order would not terminate the litigation (Rule




9
  Under Supreme Court Rule 42, an application for certification of an interlocutory appeal must be
filed within ten days of the entry of the interlocutory order and the notice of appeal must be filed
in this Court within thirty days of the entry of the interlocutory order. Supr. Ct. 42(c)(i), (d)(i).
Rule deadlines were extended under the judicial emergency declared by the Chief Justice in
response to the COVID-19 pandemic. Administrative Order No. 7 ¶ 7 (Del. June 5, 2020)
(extending deadlines that expired between March 23, 2020 and June 30, 2020 through July 1,
2020), available at https://courts.delaware.gov/rules/pdf/COVID-19AdminOrderNo7.pdf.
10
   Cuppels v. Mountaire Corp., 2020 WL 4036221 (Del. Super. Ct. July 14, 2020).
11
   Id. at *1-2.
12
   Id. at *3.
13
   Id. at *3.
                                                 5
42(b)(iii)(G)) or serve considerations of justice (Rule 42(b)(iii)(H)), which weighed

against interlocutory review.14 After considering these criteria, the Superior Court

concluded that interlocutory review was not in the interests of justice because it

would result in substantial and serious delay for the parties to the litigation.15

        (11) Applications for interlocutory review are addressed to the sound

discretion of the Court.16 Even assuming a non-party may pursue an interlocutory

appeal, this Court has concluded that the application for interlocutory review does

not meet the strict standards for certification under Supreme Court Rule 42(b).

Exceptional circumstances that would merit interlocutory review of the Superior

Court’s interlocutory opinion do not exist in this case,17 and the potential benefits of

interlocutory review do not outweigh the inefficiency, disruption, and probable costs

caused by an interlocutory appeal.18




14
   Id. at *4.
15
   Id. at *4-5.
16
   Supr. Ct. R. 42(d)(v).
17
   Supr. Ct. R. 42(b)(ii).
18
   Supr. Ct. R. 42(b)(iii).
                                           6
    NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

                                    BY THE COURT:

                                    /s/ Gary F. Traynor
                                    Justice




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