DELAWARE RULES OF CIVIL PROCEDURE
Introduction
Currently, in the state of Delaware, no license is required. Pleadings may be served by a sheriff, or by
any individual who is not a party, and is at least eighteen years of age.
Table of Contents
Issuance of writs
Attachment under Chapter 35,
Title 10, Delaware Code
Contents of writ: Generally
By whom served
Process, complaint and
affidavit of demand to be served together
Service of process; how made
Return of process
Actions in which service of process
is secured pursuant to 10 Del.C. § 3104, § 3112 or § 3113
Amendment of process
Summons: Time limit for service
Service in actions for judgment by
confession or execution thereon
Form; issuance
Service: When required
Service of pleadings and papers:
How made
Same: Numerous defendants.
Filing Filing
with the court defined.
Proof of service of papers
Sealing of court records
ISSUANCE OF WRITS
Upon the commencement of an action, the Clerk of the Court shall forthwith
issue the process specified in the praecipe and shall deliver it for service to
the sheriff of the county or counties specified in the praecipe or to a person
especially appointed by the Court to serve it. The party requesting the
issuance of process shall prepare a form thereof for signature by the Clerk of
the Court under the seal of the Court. Upon direction of the plaintiff in the
praecipe, separate or additional process shall issue against any defendants.
ATTACHMENT UNDER CHAPTER 35, TITLE 10,
DELAWARE CODE
1.
The proof required
for the issuance of a mesne writ of attachment under Chapter 35, Title 10,
Delaware Code, will be satisfied by filing with the complaint an affidavit of
plaintiff or some credible person setting forth the facts required by the
applicable statute. In addition to the facts required by the applicable
statute, such affidavit shall also state:
a.
As to each
nonresident defendant whose appearance is sought to be compelled, the
defendant's last known address or a statement that such address is unknown and
cannot with due diligence be ascertained.
b.
The following
information as to the property of each defendant sought to be seized:
i.
A reasonable
description thereof.
ii.
The estimated
amount and value thereof.
iii.
The nature of the
defendant's title or interest therein, and if such title or interest be
equitable in nature, the name of the holder of the legal title.
iv.
The source of
affiant's information as to any of the items as to which the affidavit is made
on information and belief.
v.
The reason for the
omission of any of the required statements.
2.
Bond required of
plaintiff. No mesne writ of attachment shall be issued until plaintiff, in such
proceedings, shall give bond, in an amount and with surety to be approved by
the Court out of which the writ is to be issued, conditioned that if the suit
shall not be prosecuted with effect, or if the judgment rendered therein shall
be in favor of a defendant, the plaintiff will pay any and all costs which may
be awarded to a defendant, together with any and all damages, not exceeding the
amount of the bond, which a defendant in the suit may have sustained by reason
of such attachment; for this purpose, a bond executed by an approved surety
company alone, without joinder of plaintiff shall be deemed a compliance with
the provisions of this Rule. In fixing the amount of such bond, the Court may
consider the kind of property to be seized, the estimated value thereof, the
possibility of a loss to a defendant as the result of the seizure, and other
relevant matters.
3.
Release of
attached property.
a.
Any nonresident
defendant whose property shall have been seized upon a writ of foreign
attachment and who shall have entered a general appearance in the cause may
move for an order releasing such property or any part thereof from seizure. The
Court shall then release such property forthwith unless the plaintiff shall
satisfy the Court that because of other circumstances there is a reasonable
possibility that such release may render it substantially less likely that plaintiff
will obtain satisfaction of any judgment thereafter secured and in that event
plaintiff shall also give bond with approved surety, in an amount at least
equal to the current value of the property seized, conditioned that if the
cause shall not be prosecuted with effect, or if judgment rendered therein
shall be in favor of a defendant, the plaintiff will pay all damages, including
costs, which such defendant may have sustained by reason of such seizure, not
exceeding the amount of such bond.
b.
Any property
seized under a mesne writ of attachment will be released from seizure, in whole
or in part, upon defendant's furnishing such security for its release as is
approved by the Court, conditioned for the payment of any judgment that may be
recovered in the proceedings with costs, in an amount at least equal to the
current value of the property to be released or the amount claimed in the suit,
whichever is the lesser; provided, however, that the furnishing of such
security shall not of itself constitute a general appearance.
4.
A writ of foreign
attachment may issue against any individual or incorporated association not an
inhabitant of this State or against a foreign corporation, although joined as
parties defendant with other nonresident or resident parties, with the same
effect as if such nonresident defendant were the only defendant.
5.
Every mesne writ
of attachment issued shall specify therein a reasonable description of the
property to be seized, and the amount claimed by the plaintiff. The Clerk of
the Court shall cause to be published a copy of such writ in a newspaper of
general circulation in the county in which the writ is issued at least once
within 20 days after the issuance of such writ. Within 7 days after the filing
of the sheriff's return of a writ of mesne attachment, the Clerk of the Court
shall, in addition to making the required publication, send by registered mail
to every nonresident defendant whose appearance is sought to be compelled, at
the address furnished by plaintiff, if such address is known, certified copies
of the complaint, affidavit, writ and return, filed in the cause. No
publication will be required if all defendants shall have been personally
served prior to the time publication would otherwise take place, and no mailing
will be required to any defendant who has been personally served.
6.
Except in cases of
garnishment, if it appears from the description of the property to be seized
that it is not susceptible of physical seizure within the State, the plaintiff
shall upon institution of suit obtain from the Court an order, a certified copy
of which shall be served with the writ, upon the person, persons or corporation
having possession or custody of the property or control of its transfer,
directing such person, persons or corporation to:
a.
Retain the
property and recognize no transfer thereof until order of the Court;
b.
Forthwith make a
notation upon any records pertaining to the property that such property is held
pursuant to the order of the Court; and
c.
Within 10 days
after the date of such service, file a certificate under oath with the Clerk of
the Court, specifying:
i.
Such defendant's
property, if any, of which it has possession, custody or control, or control of
its transfer;
ii.
Whether the title or interest of each such
defendant is legal or beneficial; and
iii.
If legal, the name
and address of the holder of any equitable or beneficial title or interest
therein, if known, and if beneficial, the name and address of the holder of the
legal title thereto, if known.
7.
Costs. The plaintiff
shall deposit with the Clerk of the Court an amount sufficient to defray the
cost of publication in any case where such publication is required in addition
to the usual deposit for costs, before a writ of foreign attachment will be
issued.
8.
In any action
commenced by mesne writ of attachment, the defendant shall serve the answer
(and if required, an affidavit of defense) within 40 days after the date of the
attachment of the property or the service of the writ upon a garnishee, as the
case may be. After the expiration of such 40-day period, or after the
defendant's appearance, whichever first occurs, the action shall proceed as in
suits commenced by summons.
9.
If any attached
property is of a perishable nature, or will cause undue expense in its keeping,
the Court may order the attaching officer, on due notice, to sell the same, and
retain the proceeds of sale, subject to the order of the Court. No property
attached under a mesne writ of attachment or garnishment shall be sold except
upon order of the Court, which order shall specify the notice required and all
other pertinent matters relating to such sale.
CONTENTS OF WRIT: GENERALLY
The process shall bear the date of its issuance, be signed by the
Clerk of the Court or 1 of the Clerk's Deputies, be under the seal of the
Court, contain the name of the Court and the names of the parties, state the
name of the official or other person to whom it is directed, the name and
address of the plaintiff's attorney, if any, otherwise the plaintiff's address,
and the time within which these Rules require the defendant to appear and
defend, and shall notify the defendant that in case of the failure to do so,
judgment by default will be rendered against the defendant for the relief
demanded in the complaint.
BY WHOM SERVED
Service of process shall be made by the sheriff to whom the writ
is directed, by a deputy sheriff, or by some person specially appointed by the
Court for that purpose, except that a subpoena may be served as provided in
Rule 45.
PROCESS, COMPLAINT AND AFFIDAVIT OF
DEMAND TO BE SERVED TOGETHER
The process, complaint and affidavits, if any, shall be served
together. The Prothonotary shall furnish the person making service with such
copies as are necessary. Service shall be made as follows:
SERVICE OF PROCESS; HOW MADE
1.
Summons. Service
of summons shall be made as follows:
a.
Upon an individual
other than an infant or an incompetent person by delivering a copy of the
summons, complaint and affidavit, to that individual personally or by leaving copies
thereof at that individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein, or by delivering
copies thereof to an agent authorized by appointment or by law to receive
service of process.
b.
(I) Upon an infant
of 18 years of age or more, in the same manner as upon an adult individual
unless such infant has a guardian in this State; and if there is such a
guardian, then upon such guardian in the same manner as upon an individual, if
the guardian is an individual, or in the same manner as upon a corporation, if
the guardian is a corporation.(II) Upon an infant under the age of 18 years, if
such infant has a guardian in this State, by service upon such guardian in the
same manner as upon an individual, if the guardian is an individual, or in the
same manner as upon a corporation, if the guardian is a corporation; and if
there is no such guardian, by service in the same manner as upon an individual,
upon an adult person with whom such infant resides or who has the infant's
place of abode. (III) Upon an incompetent person, if such person has a trustee
or guardian in this State, by service upon such trustee or guardian, in the
same manner as upon an individual, if the trustee or guardian is an individual;
or in the same manner as upon a corporation, if such trustee or guardian is a
corporation; and if there is no such trustee or guardian, by service in the
same manner as upon an individual, upon an adult person with whom such
incompetent person resides or who has the incompetent person's place of abode.
(IV) As used herein, trustee or guardian refers to one appointed by the Court
of competent jurisdiction in this State; provided, however, that a trustee or
guardian duly appointed by a court of competent jurisdiction of another state
may accept service and/or appear, upon filing proof of such appointment in the
cause here pending. (V) Upon an infant or incompetent person, not a resident of
the State, in the same manner as upon a competent adult person who is not an
inhabitant of or found within the State.
c.
Upon a domestic or
foreign corporation or upon a partnership or unincorporated association which
is subject to suit under common name by delivering copies of the summons,
complaint and affidavit, if any, to an officer, a managing or general agent or
to any other agent authorized by law to receive service of process and if the
agent is one authorized by statute to receive service and the statute so
requires, by also mailing a copy to the defendant.
d.
Upon a municipal
corporation or other governmental organization subject to suit by delivering a
copy of the summons, complaint and affidavit, if any, to the chief executive
officer thereof or by serving copies thereof in the manner prescribed by law
for the service of summons upon such defendant.
e.
Upon a defendant
of any class referred to in subsection (I) and (III) of this Rule, it is also
sufficient if the summons, complaint and affidavit, if any, are served in the
manner prescribed by any statute.
f.
Whenever a
statute, rule of court or an order of court provides for service of summons or
of a notice or of an order in lieu of summons upon a party not an inhabitant of
or found within the State, service shall be made under the circumstances and in
the manner prescribed by the statute, rule or order.
2.
Attachment.
Service of attachment or garnishee process shall be made in the same manner as
provided in Rule 4(f), on those persons, firms or corporations subject to such
service in this State. If garnishees are summoned upon a writ of mesne
attachment, the person serving the writ shall leave with them a copy of the
writ, the complaint and affidavit. If execution of the writ requires seizure of
real or personal property, the sheriff shall levy thereon and make his return
in the same manner as heretofore.
3.
Capias. The writ
of capias shall be served as provided by statute. The person serving the writ
shall deliver to the defendant a copy of the writ, complaint and affidavit.
4.
Scire Facias. In
actions begun by scire facias, 2 returns without service of 2 consecutive
writs, being the original writ and an alias writ, followed by a certification
by the sheriff that he has posted a copy of the alias writ on the subject
property and has mailed a copy of the alias writ by both certified mail, return
receipt requested, and first class mail to the last known address (as stated in
the praecipe) of the defendants, shall constitute legal and sufficient service.
Not later than ten (10) days following the filing of an action begun by scire
facias, the plaintiff, or his counsel of record, shall send by certified mail,
postage prepaid, return receipt requested, to holders of liens on the real
estate which is the subject of such action who have acquired such liens at the
time the action is filed and to tenants holding or possessing a leasehold
estate for years or at will in such real estate, a notice consisting of a copy
of the complaint and a written Notice to Lien Holders and Tenants of Filing of
Action substantially similar to Form 36 Appendix of Forms (Superior Court). The
notice shall be addressed to holders of liens at the address which appears upon
the recorded or filed instrument creating the lien or upon the record of the
lien, or to the counsel of record for the holder of the lien, or, if such
addresses are not ascertainable from the public records, at the last known
available or reasonably ascertainable address of the holders of such liens. The
notice shall be addressed to tenants holding or possessing a leasehold estate
for years or at will at the last known available or reasonably ascertainable
address of such tenants, and in addition, the plaintiff or his counsel of
record or a representative of the plaintiff or his counsel of record shall post
such notice on the common entrance door or in a common area of any building or
buildings on the real estate which is the subject of such action. No judgment
shall be entered in such action unless the plaintiff or his counsel of record
shall file with the Court proof of the mailing and posting of such notice which
shall consist of the usual receipt given by the post office of mailing to the
person mailing the certified article, the return receipt, or, in the case of an
undelivered notice, the original returned envelope, and a copy of the Notice to
Lien Holders and Tenants of Filing of Action mailed with such notice together
with an affidavit made by plaintiff or his counsel of record or a
representative of the plaintiff or his counsel of record specifying:
a.
The names and
addresses of holders of liens and tenants holding or possessing a leasehold
estate for years or at will in such real estate and the dates upon which the
notice was mailed by certified mail to such lien holders and tenants;
b.
That the copy of
the Notice to Lien Holders and Tenants of Filing of Action attached to the
affidavit is a true and correct copy of the Notice to Lien Holders and Tenants
of Filing of Action mailed by certified mail;
c.
That the notice
was posted on the common entrance door or in a common area of any building or
buildings on the real estate which is the subject of the action and the date of
such posting;
d.
That the receipt
obtained at the time of mailing by the person mailing the envelope containing
the notice is the receipt filed with the affidavit;
e.
That the return
receipt obtained at the time of delivery of the envelope containing the notice
is the return receipt filed with the affidavit;
f.
The date upon
which the envelope containing any undelivered notice was returned to the
sender; and
g.
If the identity or
address of any lien holders and tenants cannot be reasonably ascertained, a
description of the reasonably diligent efforts that were made by plaintiff or
his counsel to ascertain such identity or address and that plaintiff or his
counsel of record caused a copy of the Notice to Lien Holders and Tenants (but
not Exhibit "A" to such Notice) to be published once in a newspaper
of general circulation in the County which is the venue of such action. Notice
given to lien holders and tenants holding or possessing a leasehold estate for
years or at will in accordance with this paragraph shall be sufficient notice
to such parties in lieu of joinder of such parties as a defendant.
5.
Service of
original process other than summons, attachment, capias or scire facias.
Service of original process other than summons, attachment, capias or scire
facias, shall be made as provided by statute or order of court.
RETURN OF PROCESS
Original process, whether an original, alias or pluries writ shall
be returnable 20 days after the issuance of the writ, except that in actions
for mandamus the Court may, upon application for cause shown, direct that the
writ be returnable in a shorter time. The person serving the process shall make
return thereof to the Court promptly after service and in any event on the
return day thereof. Process which cannot be served before the return day
thereof shall be returned on the return day and such return shall set forth the
reasons why service could not be had. If service is made by a person other than
by an officer or his deputy his return shall be verified. Failure to make a
return or proof of service shall not affect the validity of service.
ACTIONS IN WHICH SERVICE OF PROCESS IS
SECURED PURSUANT TO 10 DEL.C. § 3104, § 3112 OR § 3113
In an action in which the plaintiff serves process pursuant to 10
Del.C. § 3104, § 3112 or § 3113, the defendant's return receipt and the
affidavit of the plaintiff or the plaintiff's attorney of the defendant's
nonresidence and the sending of a copy of the complaint with the notice
required by the statute shall be filed as an amendment to the complaint within
10 days of the receiving by the plaintiff or the plaintiff 's attorney of the
defendant's return receipt; provided, however, that the amendment shall not be
served upon the parties in accordance with the provisions of Rule 5(a).
AMENDMENT OF PROCESS
At any time in its discretion and upon such terms as it deems
just, the Court may allow any process or return of proof of service to be
amended unless it clearly appears that material prejudice would result to the
substantial rights of the party against whom the process issued.
SUMMONS: TIME LIMIT FOR SERVICE
If a service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the party on whose behalf
such service was required cannot show good cause why such service was not made
within that period, the action shall be dismissed as to that defendant without
prejudice upon the court's own initiative with notice to such party or upon
motion.
SERVICE IN ACTIONS FOR JUDGMENT BY
CONFESSION OR EXECUTION THEREON
Action for judgment by confession or execution thereon shall
comply with Rules 58.1, 58.2, and 58.3. discovery required to be served upon a
party unless the Court otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice, appearance, demand,
offer of judgment, designation of record on appeal, and similar paper shall be
served upon each of the parties. No service need be made on parties in default
for failure to appear except that pleadings asserting new or additional claims
for relief against them shall be served upon them in the manner provided for
service of summons in Rule 4.
-------------------------------------------------------------------Rule 45.
Subpoena.
FORM; ISSUANCE
1.
Every subpoena
shall
a.
state the name of
the Court and the county from which it is issued; and
b.
state the title of
the action, the name of the court in which it is pending, and its civil action
number; and
c.
command each
person to whom it is directed to attend and give testimony or to produce and
permit inspection and copying of designated books, documents, or tangible
things in the possession, custody or control of that person, or to permit
inspection of premises, at a time and place therein specified; and d. set forth the text of subdivisions (c),
(d), and (e) of this rule. A command to produce evidence or to permit
inspection may be joined with a command to appear at trial or hearing or at
deposition, or may be issued separately.
2.
A subpoena shall
issue from the county in which the action is pending. If the action is pending
in another court, a subpoena for attendance at a deposition shall issue from
the county in which the deposition is to be taken or, if separate from a
subpoena commanding the attendance of a person, a subpoena for production or
inspection shall issue from the county in which the production or inspection is
to be made.
3.
The Prothonotary
shall issue a subpoena, signed but otherwise in blank, to a party requesting
it, who shall complete it before service. A Delaware attorney, as an officer of
the Court, may also issue and sign a subpoena.
SERVICE.
1.
A subpoena may be
served by the Sheriff or by any person who is not a party and is not less than
18 years of age. Service of a subpoena upon a person named therein shall be
made by delivering a copy thereof to such person. Prior notice of any commanded
production of documents and things or inspection of premises before trial shall
be served on each party in the manner prescribed by Rule 5(b).
2.
Proof of service
when necessary shall be made by filing with the Prothonotary of the county from
which the subpoena issued a statement of the date and manner of service and of
the names of the persons served, certified by the person who made the service.
SERVICE: WHEN REQUIRED
Except as otherwise provided in these Rules, every order required
by its terms to be served, every pleading subsequent to the original complaint
unless the Court otherwise orders because of numerous defendants, every paper
relating to discovery required to be served upon a party unless the Court
otherwise orders, every written motion other than one which may be heard ex
parte, and every written notice, appearance, demand, offer of judgment,
designation of record on appeal and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure to
appear except that pleadings asserting new or additional claims for relief
against them shall be served upon them in the manner provided for service of
summons in Rule 4.
1.
Appearance: When;
how made; withdrawal. Except as otherwise provided by statute, a defendant may
appear though a summons has not been served upon the defendant. Appearance may
be made by the service and filing of notice thereof, or by the service or
filing of any motion or pleading purporting to be responsive to, or affecting
the complaint, except that appearance for purpose of satisfying a judgment,
when appearance may be made by notation thereof on the judgment docket. An
attorney may withdraw the attorney's appearance without obtaining the Court's
permission where such withdrawal will leave a member of the Delaware Bar
appearing as attorney of record for the party. Otherwise, no appearance shall
be withdrawn except on order of the Court.
2.
Appearance of
garnishee: When; how made. Any garnishee duly summoned (either on mesne writ of
attachment or execution process) shall serve upon plaintiff a verified answer
within 20 days after service of process, which shall specify what goods,
chattels, rights, credits, money or effects of a defendant, if any, the
garnishee has in the garnishee's possession or custody. Within 10 days after
service of such answer, plaintiff may serve exceptions thereto, and the
proceedings on the issues thus raised shall be had as in actions commenced by
summons. If no exceptions are filed by plaintiff to garnishee's answer within
the 10-day period as aforesaid, a delivery to the sheriff of the property set
forth in the answer by the garnishee, or so much of it as shall satisfy
plaintiff's demand, shall be a discharge of the garnishee in the proceedings,
and the sheriff shall make a suitable supplemental return on the writ showing
the property which has been delivered to the sheriff by the garnishee, and
shall dispose of such property as directed by the writ. Unless the garnishee
delivers such property to the sheriff within 5 days after the expiration of the
10-day period for plaintiff's exceptions, if any, the sheriff shall on written
direction of the plaintiff physically seize any property subject to seizure,
and with respect to any property set forth in the answer, which is not seized
or delivered to the sheriff, the plaintiff on motion may have personal judgment
entered against the garnishee in favor of plaintiff in an amount equal to the
value of the property of defendant in garnishee's custody or possession, or the
amount of the plaintiff's judgment, whichever is less, with interest and costs.
Before the sheriff shall serve any writ of attachment, the sheriff shall
receive from the plaintiff the sum of $20 for each party to be summoned as
garnishee (except as to garnishment governed by the terms of 10 Del. C. § 4913)
and said sum shall be delivered to each garnishee when the summons is served;
the return on the writ of garnishment will show the garnishee fee paid, which
will be taxed as costs in the case; no garnishee will be required to answer
without first having received the garnishee fee as aforesaid.
SERVICE OF PLEADINGS AND PAPERS: HOW
MADE
Whenever under these Rules service is required or permitted to be
made upon a party represented by an attorney the service shall be made upon the
attorney unless service upon the party personally is ordered by the Court.
Service upon the attorney or upon a party shall be made by delivering a copy or
by mailing it to the attorney or the party at the attorney's or party's last
known address or, if no address is known, by leaving it with the Clerk of the
Court. Delivery of a copy within this Rule means: handing it to the attorney or
to the party; or leaving it at the attorney's or the party's office with a
clerk or other person in charge thereof; or, if there is no one in charge,
leaving it in a conspicuous place therein; or if the office is closed or the
person to be served has no office, leaving it at the person's dwelling house or
usual place of abode with some person of suitable age and discretion then
residing therein. Service by mail is complete upon mailing.
1.
In any action
involving a claim for personal injuries, the defendant shall file and serve
with his answer, answers to the interrogatories appearing in Superior Court
Rules Form 30.
2.
If a counterclaim,
cross-claim or third-party complaint for personal injuries is filed, the
defendant in such claim shall file with the answer that discovery which is
required of a defendant in a complaint for personal injuries.
3.
The prerequisites
of Rule 5(b)(1) may for good cause shown be waived by order of the Court.
SAME: NUMEROUS DEFENDANTS
In any action in which there are unusually large numbers of
defendants, the Court, upon motion or of its own initiative, may order that
service of the pleadings of the defendants and replies thereto need not be made
as between the defendants and that any cross-claim, counterclaim, or matter
constituting an avoidance or affirmative defense contained therein shall be
deemed to be denied or avoided by all other parties and that the filing of any
such pleading and service thereof upon the plaintiff constitutes due notice of
it to the parties. A copy of every such order shall be served upon the parties
in such manner and form as the Court directs.
FILING
All papers after the complaint required to be served upon a party
shall be filed with the Court within a reasonable time after service thereof
subject to the following provisions.
1.
All requests for
discovery under Court of Common Pleas Civil Rules 31, 33, 34, 35 and 36 and
answers and responses shall be served upon all appearing counsel or parties
appearing pro se but shall not be filed with the Court. In lieu thereof, the
party requesting discovery and the party serving responses thereto shall file
with the Court a "Notice of Service" containing the following
information:
a.
a certification
that a particular form of discovery or response was served on other counsel or
opposing parties, and
b.
the date and
manner of service.
2.
The party
responsible for service of the request for discovery and the party responsible
for the response shall retain the originals and become the custodian of them.
The party taking an oral deposition shall be custodian of the original; no copy
shall be filed except pursuant to subparagraph (3). In cases involving
out-of-state counsel, local counsel shall be the custodian.
3.
If depositions,
interrogatories, requests for documents, requests for admission, answers or
responses are to be used at trial or are necessary to a pretrial or post-trial
motion, the verbatim portions thereof considered pertinent by the parties shall
be filed with the Court when relied upon.
4.
When discovery not
previously filed with the Court is needed for appeal purposes, the Court, on
its own motion, on motion by any party or by stipulation of counsel, shall
order the necessary material delivered by the custodian to the Court.
5.
The Court, on its
own motion, on motion by any party or an application by a non-party, may order
the custodian to file the original of any discovery document.
6.
When discovery
materials are to be filed with the Court other than during trial, the filing
party shall file the material together with a notice setting forth an itemized
list of the material.
7.
It shall be the
duty of the party on whose behalf a deposition was taken to make certain that
the officer before whom it was taken has delivered the original transcript to
such party. Unless otherwise ordered by the Court, any deposition which has
been filed pursuant to this Rule may be unsealed by the Clerk of the Court.
FILING WITH THE COURT DEFINED
The filing of pleadings and other papers with the Court as
required by these Rules shall be made by filing them with the Clerk of the
Court, except that the judge may permit the p judge may permit the papers to be
filed with the judge, in which event the judge shall note thereon the filing
date and transmit them to the office of the Clerk of the Court. Papers may be
filed by facsimile transmission or electronically if permitted by these Rules,
by administrative order, or by a judge.
PROOF OF SERVICE OF PAPERS
Unless otherwise ordered, no pleading or other paper, required by
these Rules to be served by the party filing the paper, shall be filed unless
the original thereof shall have endorsed thereon a receipt of service of a copy
thereof by all parties required to be served or it shall be accompanied by
affidavit showing that service has been made and how made or it shall be
accompanied by a certificate of an attorney of record showing service has been
made and how.
SEALING OF COURT RECORDS
1.
Except as
otherwise provided by statute or rule, including this Rule 5(g) and Rule 26(c),
all pleadings and other papers of any nature filed with the Clerk of the Court,
including briefs, appendices, letters, deposition transcripts and exhibits,
answers to interrogatories and requests for admissions, responses to requests
for production or certificates and exhibits thereto ("Court
Records"), shall become a part of the public record of the proceedings
before this Court.
2.
Court Records or
portions thereof shall not be placed under seal unless and except to the extent
that the person seeking the sealing thereof shall have first obtained, for good
cause shown, an order of this Court specifying those Court Records, categories
of Court Records, or portions thereof which shall be placed under seal;
provided, however, the Court may, in its discretion, receive and review any
document in camera without public disclosure thereof and, in connection with
any such review, may determine whether good cause exists for the sealing of
such documents; and provided further that, unless the Court orders otherwise,
the parties shall file within 30 days redacted public versions of any Court
Record where only a portion thereof is to be placed under seal.
3.
The provisions of
paragraph (2) of this Rule 5(g) notwithstanding, the Court may, in its
discretion, by appropriate order, authorize any person to designate Court
Records to be placed under seal pending a judicial determination of the
specific Court Records, categories, or portions thereof to which such
restriction on public access shall continue to apply.
4.
Any person who
objects to the continued restriction on public access to any Court Record
placed under seal pursuant to paragraphs (2) or (3) of this Rule 5(g) shall
give written notice of his or her objection to the person who designated the
Court Record for filing under seal and shall file such written notice with the
Court. To the extent that any person seeks to continue the restriction on
public access to such Court Record, he or she shall serve and file an
application within seven days after receipt of such written notice setting
forth the grounds for such continued restriction and requesting a judicial
determination whether good cause exists therefor. In such circumstances, the
Court shall promptly make such a determination.
5.
The Clerk of the
Court shall promptly unseal any Court Record in the absence of timely
compliance with the provisions of this Rule 5(g), if applicable. In addition,
30 days after final judgment has been entered without any appeal having been
taken therefrom, the Clerk of the Court shall send a notice, return receipt
requested, to any person who designated a Court Record to be placed under seal
that such Court Record shall be released from confidential treatment if
required to be kept by the Clerk or, if not required to be kept, returned to
the person at the person's expense or destroyed, as such person may elect,
unless that person makes application to the Court within 30 days after notice
from the Clerk for further confidential treatment for good cause shown.
In Delaware, lobbyists and state officials are always active in
transforming laws concerning civil procedure.
As a result, state information offered on our website may have been
amended recently. For contemporary
process serving and civil statutes, visit the official Delaware Judicial System
Court website: http://courts.delaware.gov/
