A question that frequently arises concerns the appropriate venue for disputes concerning subpoenas issued in aid of out-of-state proceedings. The Delaware Uniform Interstate Depositions and Discovery Act, 10 Del. C. Section 4311, provides that an application for a protective order or to enforce, quash or modify a subpoena issued by the prothonotary pursuant to a foreign subpoena must comply with the rules or statutes of Delaware and be submitted to the Superior Court in the county in which discovery is to be conducted. But what if the foreign state does not follow the Uniform Act? In In re Delaware Subpoena Issued Pursuant to Letters Rogatory in De Lage Landen Financial Services v. Spinal Technologies, C.A. No. N21-M-01-040 (Del. Super. Aug. 10, 2021), Superior Court Judge Paul R. Wallace addressed two issues raised by subpoenas issued pursuant to foreign letters rogatory: whether the Superior Court or the foreign court should hear disputes concerning the propriety and scope of the subpoenas, and whether to shift costs from the nonparty to the party requesting the discovery.

The action concerned Letters Rogatory granted by a Texas state court seeking a subpoena for discovery from a nonparty Delaware corporation. Texas is one of a handful of states that has not enacted the Uniform Act. The underlying case involved the alleged breach of a master lease agreement whereby De Lage Landen Financial Services, a Michigan corporation, leased equipment manufactured by Mazor Robotics, a Delaware company, to Spinal Technologies, a Texas company. Spinal Technologies defaulted on payments to De Lage Landen, and De Lage Landen sued Spinal Technologies and others alleging breach of contract and breach of individual guaranties. Spinal Technologies counterclaimed for fraudulent inducement against De Lage Landen. It alleged that the equipment manufactured by Mazor was defective, and that Mazor and De Lange Landen wrongfully induced it to enter in the lease agreement for the allegedly defective equipment.

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