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Netter v. Netter

Supreme Court of South Dakota

November 6, 2019

STEPHANIE NETTER, Plaintiff and Appellee,
v.
DONALD NETTER, Defendant and Appellant.

          ARGUED AUGUST 27, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M. BROWN Judge

          VINCE M. ROCHE JUSTIN T. CLARKE of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for appellant South Dakota Trust Company LLC as Independent Trustee of the Ann Holdings Trust and the Six Cataracts Trust.

          MICHAEL F. TOBIN of Boyce Law Firm, LLP Sioux Falls, South Dakota Attorneys for appellant South Dakota Trust Company LLC as Independent Trustee of the Scout Resources Trust and DASSA Trust.

          LINDA LEA M. VIKEN of Viken Law Firm Rapid City, South Dakota Attorneys for appellee.

          JENSEN, JUSTICE.

         [¶1.] Amidst a divorce proceeding in Connecticut between Stephanie Netter and Donald Netter, Stephanie served an out-of-state subpoena duces tecum on South Dakota Trust Company LLC (SDTC), seeking information from four South Dakota trusts administered by SDTC. After Stephanie and SDTC were unable to reach an agreement concerning the terms of a protective order for the information sought, Stephanie filed a motion for a protective order and scheduled a hearing with the circuit court in South Dakota. SDTC submitted written argument requesting additional protections beyond those Stephanie requested. Just before the hearing, Stephanie sought to withdraw the subpoena and the motion for protective order. Based upon Stephanie's withdrawal of the subpoena, the circuit court dismissed the proceeding. We affirm.

         Facts and Procedural History

         [¶2.] Both Donald and Stephanie are residents of the State of Connecticut. Donald has interests in four discrete trusts located in South Dakota: The Six Cataracts Trust, formerly known as The Donald Netter Trust; The Ann Holdings Trust; The DASSA Trust; and The Scout Resources Trust (Trusts). SDTC is a trustee of the Trusts. The Trusts own interests in several South Dakota limited liability companies (LLCs). Donald is the manager of the LLCs.

         [¶3.] In the Connecticut divorce action, Donald, Stephanie, and their respective counsel entered into a contractually binding Confidentiality Agreement governing discovery. Subsequently, Stephanie sought to obtain information directly from the Trusts concerning Donald's South Dakota business interests. In November 2017, Stephanie properly served SDTC with a foreign subpoena pursuant to SDCL 15-6-28.3 for an interstate deposition and production of documents concerning Donald's South Dakota business interests.[1]

         [¶4.] Thereafter, SDTC and Stephanie attempted to negotiate a protective order for the information subpoenaed from the Trusts. Following several months of unsuccessful negotiations, Stephanie filed a motion for a protective order, proposing terms she believed were adequate to protect the information. SDTC responded to the motion by submitting its own proposal for a protective order. The fundamental dispute involved Stephanie's disagreement with SDTC's request that the parties, their counsel, and any persons receiving the information be required to sign a confidentiality agreement. The parties scheduled a hearing with the circuit court in South Dakota to address this dispute.

         [¶5.] Shortly before the hearing, Stephanie informed the circuit court in writing that she intended to withdraw her subpoena and motion. She indicated that the South Dakota subpoena was no longer necessary because Donald had agreed to provide the requested information through discovery in the Connecticut divorce. Stephanie also provided a copy of an order from the Connecticut divorce court, incorporating the Confidentiality Agreement previously signed in Connecticut. She argued there was no additional need to protect any of the Trusts' documents because adequate protections were already in place to protect these documents in the Connecticut divorce proceeding.

         [¶6.] Stephanie formally withdrew the subpoena and her motion for protective order at the start of the hearing before the circuit court, indicating there was no further need to proceed with either the out-of-state subpoena or the request for a protective order. SDTC objected and requested the court impose a protective order requiring any party receiving documents from the Trust to execute a confidentiality agreement.

         [¶7.] The court entered an order allowing Stephanie to withdraw her motion for protective order and dismissed the action. In its findings of fact and conclusions of law, the court determined that (1) it lacked jurisdiction over the parties to impose a protective order; (2) SDTC's request for a protective order was moot or otherwise not ripe for consideration; and (3) the court ...


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