IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE MARRIAGE OF:
JAY EDELSON,
Petitioner,
C.A. No: N20M-09-140
vs.
ISSUANCE OF FOREIGN
DANA EDELSON, SUBPOENA
Respondent.
Submitted: January 15, 2021
Decided: January 20, 2021
Upon Dana Edelson’s Motion to Compel Response
to Out-of-State Subpoena Directed to Third Party
GRANTED in part; DENIED in part
ORDER
This matter is before the Court on a motion by Respondent to compel a third
party to produce documents sought in connection with an Illinois divorce
proceeding. Specifically, Respondent seeks to challenge assertions by Petitioner in
the divorce proceeding with respect to his assets, expenses and liabilities. Third-
party Bench Walk Advisors, LLC, (“BWA”) opposes the motion to compel on the
grounds that the information sought includes proprietary information.
1. BWA is a Delaware limited liability company incorporated and
headquartered in Delaware.
2. It is not disputed that Petitioner had a business relationship with BWA,
in that BWA loaned money to Petitioner which has since been paid in full.
Specifically, BWA provided litigation funding to Edelson, P.C., the law firm in
which Petitioner practices law.
3. BWA asserts that the loan document sought by Respondent contains
proprietary pricing information. According to BWA, “Pricing models are one of the
chief differences among companies in the highly competitive litigation funding
industry, and BWA guards its models zealously.”1 BWA strenuously objects to
producing documents which will disclose its proprietary pricing model. This Court
agrees that a non-disclosure agreement would not adequately protect its interest
under the circumstances presented here.
4. In an Order dated September 17, 2020, the Honorable Debra B. Walker
ordered compliance with the subpoena issued by Respondent to BWA. However,
Judge Walker acknowledged a lack of jurisdiction over BWA2 and also noted that
BWA did not appear in the Circuit Court of Cook County, Illinois, County
Department, Domestic Relations Division (“Illinois Circuit Court”).3
1
BWA’s Resp. ¶ 5.
2
Dana Edelson’s Mot. Compel. Ex. C, at 10 (Tr. at 40).
3
Dana Edelson’s Mot. Compel. Ex. D (In re Marriage of Jay Edelson, 2018 D
009047 (Sept. 17, 2020)).
2
5. Delaware Uniform Interstate Deposition and Discovery Act4 promotes
uniformity among jurisdictions with respect to discovery and depositions.
6. However, while this Court respects the ruling issued by the Illinois
Circuit Court, the issue presented here for this Court’s consideration was not fully
litigated in the Illinois Circuit Court. Due process requires full and fair consideration
of BWA’s interests before requiring disclosure of proprietary information.5 For
example, when this Court enforced a New Jersey subpoena in Adams v. Suez Water
Management & Services, Inc.,6 the issues in dispute had been fully litigated by the
New Jersey court.
7. BWA has produced all financial statements and information presented
to BWA by Petitioner. These financial documents are relevant to the divorce
proceedings and do not impact the interests of the third party. Accordingly, these
documents were properly produced.
8. Respondent is entitled to test the assertions of Petitioner with respect to
expenses claimed to offset marital assets. BWA has agreed to provide financial
information regarding the amounts disbursed in loan(s) to Petitioner and the
4
See 10 Del. C. § 4311.
5
W.L. Gore & Assocs., Inc. v. Wu, 2006 WL 905346, at *4 (Del. Ch. Mar. 30, 2006),
aff’d, 918 A.2d 1171 (Del. 2007) (applying the balancing test set forth in Mathews
v. Eldridge, 424 U.S. 319 (1976), to determine the amount of process due for highly
confidential and proprietary information).
6
2020 WL 1082401 (Del. Super. Mar. 4, 2020), reargument denied, 2020 WL
3073083 (Del. Super. June 8, 2020).
3
amount(s) received from Petitioner as repayment. The Court finds this information
is relevant and should be produced. On the other hand, it is unduly burdensome on
a third party, such as BWA, to require production of loan documents which include
proprietary terms and conditions, especially where, as here, the relevant information
will be produced.
NOW, THEREFORE, in consideration of the parties’ written submissions,
oral argument presented January 15, 2021, the Delaware Uniform Interstate
Deposition and Discovery Act, Superior Court Rules of Civil Procedure, decisional
law, and the entire record in this miscellaneous matter, BWA shall produce all
financial statements and information presented to BWA by Petitioner as well as the
amounts disbursed in loan(s) to Petitioner and the amount(s) received from
Petitioner as repayment. The balance of the information sought is unduly
burdensome to a third party.
Accordingly, Dana Edelson’s Motion to Compel Response to Out-of-State
Subpoena Directed to Third Party is hereby GRANTED in part and DENIED
in part.
IT IS SO ORDERED this 20th day of January 2021.
Andrea L. Rocanelli
_________ _______ _______ ______ _______ _______ ______ _______ _______ ______ _______ ______ _______ _______ ______ _______ _______ ______ _______ _______ ______ _______ ______ _______ _______ ______ _______ _______ ______ _______ _______ ______ _______ ______ _______ _______ ____ ____ _____ _______ _______ ______ _______ _______ ______ _______ _______ ______ _______ ______ _______ _______ ______ _______ _______ ______ _______ _______ ______ _______ ______ _______ _______ ______ _______ ___
The Honorable Andrea L. Rocanelli
4