IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

IN AND FOR NEW CASTLE COUNTY

MINE SAFETY APPLIANCES

COMPANY,

 

 Plaintiff,

 

 v.

AIU INSURANCE COMPANY, et al., 

 Defendants.

)

) 

) 

) 

) 

) C.A. No. N10C-07-241 MMJ 

)

)

)

) 

Submitted: September 16, 2014

Decided: September 19, 2014

Upon Defendant AIG Insurers’ Exceptions to the September 12, 2014 Ruling of 

the Special Discovery Master 

DENIED

ORDER

JOHNSTON, J.

On December 9, 2013, Defendants American Home Assurance Company, 

AIU Insurance Company, and National Union Fire Insurance Co. of Pittsburgh, PA 

(collectively “AIG”) filed a motion for commissions in this Court seeking the 

issuance of Pennsylvania subpoenas directed to Michael H. Sampson, Esquire, and 

Brian T. Himmel, Esquire (“Witnesses”) in the Pittsburgh office of Reed Smith 

LLP. 
2

On January 8, 2014, Plaintiff Mine Safety Appliances Company (“MSA”) 

filed a cross-motion for a protective order against the issuance of the commissions. 

Following full briefing and oral argument, the Special Discovery Master (“Special 

Master”) issued a ruling on April 17, 2014 (“April 17 Ruling”), granting AIG’s

motion for the issuance of commissions, and denying MSA’s cross-motion for a 

protective order. On June 30, 2014, this Court denied MSA’s exceptions to the 

Special Master’s April 17 Ruling and approved the ruling in its entirety.

On July 28, 2014, AIG petitioned the Court of Common Pleas of Allegheny 

County, Pennsylvania to issue subpoenas to the Witnesses directing them to 

provide deposition testimony and to produce various categories of documents. On 

August 12, 2014, the Witnesses filed a motion to quash the subpoenas in the 

Pennsylvania court. The Pennsylvania motion to quash is scheduled to be heard on 

September 26, 2014. 

On August 18, 2014, AIG filed a Motion for Order Compelling Discovery 

and for Sanctions against MSA Pursuant to Superior Court Rules 26 and 37 in this 

Court. MSA opposed the motion, and after briefing, oral argument was presented 

to the Special Master on September 11, 2014.

On September 12, 2014, the Special Master issued a Ruling (“September 12 

Ruling”) that denied AIG’s motion to compel discovery and for sanctions. In the 

September 12 Ruling the Special Master concluded: (1) under the principles of 
3

comity, the Pennsylvania version of the Uniform Interstate Depositions and 

Discovery Act (“UIDDA”) governs a motion to quash that is filed in Pennsylvania; 

and (2) Delaware Superior Court Civil Rule 26(c) supports UIDDA’s governance. 

On September 15, 2014, AIG filed Exceptions to the Special Master’s 

September 12 Ruling. In its Exceptions, AIG asserts the Special Master: (1) did 

not properly interpret and apply Rule 26(c); (2) did not consider that the files in 

possession of the Witnesses are MSA’s documents; and (3) did not address AIG’s

request for sanctions.

In response, MSA argues that the Special Master correctly interpreted Rule 

26(c), and that MSA should not be subject to sanctions because MSA did not 

violate the Court’s June 30, 2014 Order. 

The Order of Reference to Special Master, dated December 5, 2012, 

establishes the Court’s proceedings when a party files an exception to a decision of 

the Special Master during the course of this litigation. The Court reviews de novo

the Special Master’s Ruling.1

As to AIG’s Exceptions, the Court finds that the principles of comity require 

that the Pennsylvania version of the UIDDA governs the motion to quash filed in 

Pennsylvania. As reasoned by the Special Master in the September 12 Ruling,

discovery sought pursuant to commissions is governed by the laws of the discovery 

 1 Trans. ID 48202156
4

state. As a result, a Delaware court should refrain from controlling the disposition 

of out-of-state subpoenas because, presumably, courts in other states would respect 

Delaware’s right under the UIDDA to adjudicate the matters concerning subpoenas 

issued to Delaware residents. 

The Court also approves the Special Master’s reliance on Capital Resources, 

LLC, et al. v. Chelda, Inc., et al.2

 Although Capital Resources is not binding in 

Delaware, the Court finds the rationale of the Court of Appeals of North Carolina 

to be directly aligned with applicable Delaware law.

The Court also finds that the Special Master properly interpreted Rule 26(c) 

in the September 12 Ruling. The ordinary meaning of the word “alternatively” in 

Rule 26(c) refers to a scenario, as is the case here, where a Delaware court does not 

have jurisdiction over a deponent, thus leaving matters related to the deposition

within the powers of the court where the deposition is to be taken. As explained by 

the Special Master, this Court fully performed its proper function by ruling on the 

motion for commission and the cross-motion for a protective order that preceded 

the Pennsylvania subpoenas.

While AIG’s interpretation of Rule 26(c) is not unreasonable, AIG was 

unable to cite any Delaware case law affirming the “one or the other” approach to 

Rule 26(c). Conversely, the Special Master concluded MSA was permitted to 

 2 735 S.E. 2d 203, 207 (N.C. Ct. App. 2012).
5

oppose AIG’s motion for commissions as evidenced by a prior case before this 

Court and the two-step process contemplated by Rule 26(c).3

 

The Court also finds that the documents in the possession of the Witnesses 

do not have to be turned over to AIG. As the Special Master stated in a footnote, 

such an order would interfere with the pending motion in Pennsylvania under the 

same principles of comity as discussed for the motion to quash. Further, the Court 

finds that MSA did not violate this Court’s June 30, 2014 Order because MSA was 

not required to take any affirmative action. The relief AIG sought at that time was 

the issuance of commissions to be given the opportunity to depose the Witnesses. 

At no point did AIG seek relief against MSA concerning the documents held by 

the Witnesses. Thus, MSA could not have violated the Order.

Finally, the Court finds that AIG’s request for sanctions should be denied. 

AIG contends they should be entitled to recoup all expenses associated with 

opposing MSA’s January 8, 2014 cross-motion for a protective order. In support 

of this request AIG cites the Special Master’s language that MSA may be “seeking 

to render a practical nullity all the effort and expense that the Court and parties 

devoted to addressing MSA’s opposition to the depositions in Delaware.” 

However, AIG overlooks the language directly succeeding that statement where

 3 See, e.g., Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 2008 WL 498743, at *6

(Del. Super.) (denying motions for commissions due to lack of responsive 

documents or knowledgeable witnesses).
6

the Special Master confirms that despite AIG’s contentions, the Witnesses are 

entitled to seek a motion to quash in Pennsylvania under both Pennsylvania and 

Delaware law. As a result, the Court does not find that sanctions are warranted 

given that MSA and the Witnesses have chosen to exercise their independent rights 

to challenge the issuance of the commissions and the Pennsylvania subpoenas.

The Court finds that the Special Master carefully considered all issues raised 

by the parties. The September 12, 2014 Ruling is consistent with applicable legal 

precedent and the Delaware Superior Court Civil Rules. This Court is not 

persuaded by any exceptions to the ruling. Upon de novo review, the Court finds 

the Special Master’s ruling -- denying the motion to compel discovery and for 

sanctions -- to be well-reasoned. 

THEREFORE, the Special Discovery Master’s September 12, 2014 Ruling 

is hereby APPROVED. All exceptions are hereby DENIED.

IT IS SO ORDERED.

/s/_ /s/__Mary M. Johnston________

The Honorable Mary M. Johnston