Free Letter - District Court of Delaware - Delaware

Case 1:04-cv—01422-G|\/IS Document 68 Filed 03/21/2007 Paget 0f2
n.Aw OFFICES
A ABER, GOLDLUST, BAKER & OVER
(AN ASSOCIATION OF LAW PRACTICES)
702 KING STREET, SUITE 6OO
P.0. 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. March
SUSAN C. OVER, P.C. 5
SHAUNA T. HAGAN
SAAGAR B. SHAH
The Honorable Gregory M. Sleet
United States District Court
844 King Street
Wilmington, DE 19801
RE: Hamilton/Elohim v.Guessford, et.al.
C.A. No.: 04-1422 (GMS)
Dear Judge Sleet:
I write to the Court with regards to a discovery dispute, and Your Honor's directions
contained, in Paragraph 3(a) of the Court's Scheduling Order.
As Your Honor may recall, this suit involves the unlawful detention of the plaintiff by the
I defendants for the period of approximately four (4) years beyond the date, from which he was
scheduled to be released from State custody. As background in this case, a review of the
complaint reveals that in the early l990's, the plaintiff challenged his release date, which the
defendants maintained was in 1999.. The Superior Court granted Summary Judgment to the
Defendants, based upon the defendants' assertion that the plaintiffs release date was in 1999
(Complaint/Answer 1119). Subsequently in 1996 the defendants recalculated the plaintiffs short
term release date, and to set it for Jtme ll, 2004 (Complaint/Answer 111[ 20-21). As a result of
legal proceedings, the Superior Court of the State of Delaware ruled and ordered that his
sentence be recalculated (Complaint/Answer {[53), which would have resulted in an almost
immediate release of the plaintiff. Thereafter, the State moved to stay the Superior Court's Order
(Complaint/Answer 1154). On appeal of the Superior Court's Order, the State argued that the
"law of the case" doctrine prevented the Superior Court from ordering a recalculation of the
plaintiffs sentence. Hamilton v. State, 831 A.2d 881 (Del. 2003) at p. 886-887. The Court held,
in response to the State's "law of the case" argument that:
"Under the 'clearly erroneous' exception to the doctrine of law of the case, the
Superior Court properly considered and granted Hamilton's previously rejected
sentence recalculation claim." Hamilton v. State, supra, at p. 889.
As a result of the status of the case, the plaintiff maintains that commtmications between
the Delaware Attorney General's Office, and the defendants conceming the calculation of
plaintiffs sentence have been made an issue in this case, by the defendants' assertion of the
affirmative defense of qualified immunity. As a result the defendants have waived any claim of
attorney—client privilege.

Case 1:04-cv—01422-G|\/IS Document 68 Filed 03/21/2007 Page 2 of 2
The Honorable Gregory M. Sleet
March 21, 2007
Page Two
» This issue has been discussed by the plaintiff, and defendant pursuant to L.R. 7.1.1. The
following documents are attached as exhibits:
1. Defendant's Letter of October 19, 2006 in which the defendants assert the
attorney—c1ient privilege over three emails.
2. Plaintiffs Letter of October 30, 2006 asserting the legal theories and basis for the
waiver of the privilege.
3. Defendant's Letter of November 8, 2006 in response to No. 2 above, continuing to
assert the attorney-client privilege.
The plaintiff would request the Court to consider an order to the defendants, to produce
the claimed privileged documents.
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