935 N.W.2d 789
S.D.2019Background
- Stephanie and Donald Netter (both Connecticut residents) were litigating divorce in Connecticut; Donald is beneficiary/manager of four South Dakota trusts administered by South Dakota Trust Company LLC (SDTC).
- Stephanie served an out-of-state subpoena duces tecum on SDTC under SDCL 15-6-28.3 seeking Trust documents about Donald’s business interests in South Dakota.
- Parties failed to agree on terms of a protective order; Stephanie moved in South Dakota for a protective order and SDTC proposed broader confidentiality protections (including signed confidentiality agreements).
- Before the scheduled South Dakota hearing, Stephanie withdrew the subpoena and the motion, explaining Connecticut discovery (and an incorporated Confidentiality Agreement) would provide the requested documents and protections.
- The circuit court allowed withdrawal and dismissed the South Dakota proceeding as moot, concluding it lacked jurisdiction to impose the requested confidentiality agreement; SDTC appealed.
Issues
| Issue | Plaintiff's Argument (Netter) | Defendant's Argument (SDTC) | Held |
|---|---|---|---|
| Whether the South Dakota proceeding was moot after withdrawal of the subpoena | Withdrawal eliminated any South Dakota controversy; Connecticut discovery and confidentiality order resolve needs | Withdrawal did not moot SDTC’s request for a protective order; South Dakota court can and should impose protections | Court: Proceeding was moot once subpoena withdrawn; dismissal affirmed |
| Whether circuit court retained jurisdiction to issue protective order once subpoena withdrawn | No; SDCL 15-6-28.3 jurisdiction ties to enforcement/disputes relating to an issued subpoena | Jurisdiction exists to enter protective order to govern future/disclosed documents | Court: No live controversy under the statute after withdrawal; no basis to decide protective order request |
| Whether protective order may mandate third parties sign confidentiality agreements (authority under SDCL 15-6-26(c)) | Not addressed in depth because withdrawal moot; Netter relied on Connecticut confidentiality protections | SDTC argued circuit court could require execution of confidentiality agreements as part of protective order | Court did not rule on merits due to mootness; declined to address statutory authority |
| Whether dismissing without ruling requires vacatur/remand or affirmation | Netter urged dismissal as moot without further relief | SDTC sought further South Dakota protections and contested dismissal | Court affirmed dismissal as moot; declined to reach other issues (no practical relief possible) |
Key Cases Cited
- Skjonsberg v. Menard, Inc., 2019 S.D. 6, 922 N.W.2d 784 (mootness doctrine; vacatur/remand principle when claim becomes moot before final order)
- Sullivan v. Sullivan, 2009 S.D. 27, 764 N.W.2d 895 (definition of mootness; change of circumstances removes justiciable controversy)
- Larson v. Krebs, 2017 S.D. 39, 898 N.W.2d 10 (exceptions to mootness doctrine, e.g., public policy and capable-of-repetition-yet-evading-review)
- In re Woodruff, 1997 S.D. 95, 567 N.W.2d 226 (legal conclusions reviewed de novo)
- Gottschalk v. Hegg, 89 S.D. 89, 228 N.W.2d 640 (ripeness/mootness principles)
- Investigation of Highway Const. Indus. v. Bartholow, 373 N.W.2d 419 (S.D. 1985) (ripeness and overlap with mootness doctrine)
- Boever v. S. Dakota Bd. of Accountancy, 526 N.W.2d 747 (S.D. 1995) (ripeness: timing of judicial review)