Free Letter - District Court of Delaware - Delaware

Case 1:O4—cv—O1422-GI\/IS Document 68-4 Filed O3/21/2007 Page1 0f3

Case 1:O4—cv—O1422-GI\/IS Document 68-4 Filed O3/21/2007 Page 2 of 3 ·
, ' n.Aw OFFICES
. ABER, GOLDLUST, BAKER & OVER I .
» 4(AN ASSOCIATION OF LAW PRACTICES) .
. A .702 Kms STREET, SUITE 600 I - ‘
P.O. Box 1675
» _ WILMINGTON, DELAWARE 19899-1675 .
i GARY W. ABER, P.C. _ I I _ I . i (302) 472·4900 A
PERRY F. GOLDLLIST, P.A.* A TELECOPIER (302) 472-4920 A
SCEES? §.‘1’.§‘Ti‘Z;.’“"" 0 0¤t¤0¤r 30 2006 ` n
i SHAUNA T. HAGAN .
SAAGAR E. si-mn-1 A . 0 A · ,'
Eileen Kelly, Esquire ‘ A ·
· — Deputy Attorney General I ' I i
» Department of Justice A -
Carvel State Building
I 1 820 N. French Street A V E · 0
Wilmington, DE 19801, A i
RE: Hamilton v. State Department of Corrections ° ’ I ‘
A Dear Eileeni ° . · A up 0
. 1 T 1 received your letter of October 19, 2006, providing me with a "Rrivilege Log" of those
items which you claim are protected by the attorney client privilege. You list three items, which
are all emails, of March 27,2003, June 10, 2003, and October 2, 2003. t
· ln your answer to the complaint, you have pled as an affirmative defense, that your — I
clients are protected by "Qualified lmmunity". As the Third Circuit Court of Appeals has
recognized, Qualifiedlmmunity is used to protect officials, who may, overs_tep constitutional
A boundaries, but are nevertheless acting in objective good faith. Monteiro v. City of Elizabeth, -
l , ____ __ 436 F.3d 397 (3d Cir. 2006). In order to claim protection of the "Qualified lrnmunity" doctrine, . A
_ the defendants will have to demonstrate that they acted in reasonable good faith. Grunke v. Seip,
‘ 225 F.3d 290 (3d Cir;2000). · . i ·
It is well established that when a party asserts "Qualified lmmunity" they have waived
the attorney client privilege. Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975);- cited with
(approval, U.S. *v. Blizerian, 926 F;2d 1285 (2d Cir. 1991); In Re: AT & T Access Charge
A Litigation, __F.Supp.2d , 2006 WL 2587607 (D.Nj. 2006); Harter v. University of
Indianapolis, 5 F.Supp.2d 657 (S.D.Ind. l998)(By pleading an affirmation defense of good faith
» qualified immunity, defendants implicitly waive privilege as to legal advice provided by a state's
attorney general). . A .
0 Based upon those arguments, I write to you pursuant to L.R. 7.1.l_ and request that you I
produce documents referred to in your letter of October 19, 2006.

;_< · Case 1 :04-cv-01422-GIVIS Document 68-4 Filed O3/21/2007 Page 3 of 3
Eileen Kelly, Esquire A U _
· October 30, 2006 » ` _ _ -
Page Two °
0 _ Thank you for your aesistance and cooperation. A _ · ·
. _ _ T . Gary W. Aber I
GWA/mac A
cc: Mr. Cheikh Ahmed Elohim ‘ »