Netter v. Netter, #28867

• Court: Supreme Court of South Dakota
• Writing for the Court: JENSEN, Justice
• Citation: 2019 S.D. 60
• Parties: STEPHANIE NETTER, Plaintiff and Appellee, v. DONALD NETTER, Defendant and Appellant.
• Docket Number: #28867,#28888
• Decision Date: 06 November 2019

2019 S.D. 60

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

#28867
#28888

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED AUGUST 27, 2019
November 6, 2019

#28867, #28888-a-SRJ

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.

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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

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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.

Page 4

[¶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...