Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01422-GIVIS Document 72 Filed 03/27/2007 Page 1 of 2
n.Aw OFFICES
ABER, GOLDLUST, BAKER & OVER `
(AN ASSOCIATION OF LAW PRACTICES)
. 702 KING STREET, SUITE 600
P.O. Box 1675
WILMINGTON, DELAWARE 19899-1675
GARY W. ABER, P.C. (302) 472-4900
PERRY F. GOLDLUST, P.A.* TELECOPIER (302) 472-4920
DARRELL J. BAKER, P.A. Mmch 27,
SUSAN C. OVER, P.C.
SHAUNA T. HAGAN
SAAGAR B. SHAH
The Honorable Gregory M. Sleet
United States District Court
844 King Street
it Wilmington, DE 19801
RE: Hamilton/Elohim v.Guessford, et.al.
C.A. No.: 04-1422 (GMS)
Dear Judge Sleet:
I am writing, and providing a reply, to the defendant's response to my letter of March 21,
2007 concerning a discovery dispute in the above-captioned matter.
In my initial letter, I gave the Court a factual backgrotmd of this case, and pursuant to
1[3(a) of your scheduling order, attempted to make a "non—argumentative" presentation to the
Court, by providing both party's correspondence dealing with the discovery dispute. I now feel I
must respond substantively to the defendant's letter of March 24, 2007, and the substantive
arguments made in that correspondence.
The dispute in this matter revolves around the assertion of the attomey-client privilege
( over three communications between the defendants, and the attorney general’s office concerning
the plaintiffs continued unlawful incarceration. In this matter the defendants have asserted as an
affirmative defense "Qualified lmmunity". It is the plaintiffs position that the defendants' state
of mind in asserting such a defense is not only relevant, but essential to their claims. One of the
claims asserted by the plaintiff is that even after the Superior Court ruled that there had been an
error in its previous decision, and on remand from continued wrongful incarceration from the
Delaware Supreme Court, it corrected that error and ordered the plaintiff released, the defendants
nevertheless continued to pursue a course, which resulted in the plaintiffs relying upon the
doctrine of "law of the case". The Delaware Supreme Court firmly rejected such an argument.
Hamilton v. State , 831 A.2d 881, 886-887 (Del. 2003).
The defendant relies upon Rhone-Poulenc Rorer, Inc. v. Home Indem. Co., 32 F.3d 851,
863 (3d Cir. 1984) for its rejection of the authority upon which the plaintiff relies, Hearn v. Ray,
68 F.R.D. 574 (E.D. Wash. 1975). However, what the defendant appears to misunderstand is
that the decision in Rhone-Poulenc was whether or not the information sought to be protected by
the attorney—client privilege, in a non—Constitutional matter, was merely relevant to litigation. In
the present case, the defendants' state of mind is an essential element for the plaintiffs claim of
extended wrongful incarceration. As the Third Circuit Court of Appeals explained in Grant v.

Case 1:04-cv—01422-G|\/IS Document 72 Filed 03/27/2007 Page 2 of 2
The Honorable Gregory M. Sleet
March 27, 2007
Page Two
Cig of Pittsburgh, 98 F.3d 116, 124 (3d Cir. 1996) that a state of mind may be an essential
element of the affirmative defense of qualified immunity. In the present case, it is submitted that
the defendants' state of mind in continuing to seek further incarceration of the plaintiff, after a
Delaware court had ruled, and it was acknowledged by the defendants that an error had been
made, merely by relying upon the "law of the case" doctrine shows an illicit purpose. The
information obtained by the defendant from the attorney general's office, would go to that
essential element.
Thank you for Your Honor's consideration.
Respectfully,
/s/ Gary W. Aber
_ Gary W. Aber
GWA/mac
cc: Eileen Kelly, Esquire
Mr. Jerome K. Hamilton