Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv—O1286-JJF Document 46-3 Filed O1/05/2006 Page 1 oP4ge 2 0f5
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Not Reported in A.2d Page 1
Not Reported in A.2d, 1994 WL 319171 (De1.Super.)
(Cite as: Not Reported in A.2d)
H decision on the pending motion.
Only the Westlaw citation is currently available.
UNPUBLISHED OPINION. CHECK COURT
RULES BEFORE CITING. FACTS
Superior Court of Delaware, Sussex County.
Sabrina BECKETT, Plaintiff, Beckett alleges the following in her complaint. ml
v. Defendant Townsends, Inc. ("Townsends") hired
Bernard TRICE, Merit Services, Ltd., a Delaware defendants Wells Fargo & Co., Merit Services, Ltd.
corporation, Wells Fargo & Company,aDe1aware and Borg Warner Corporation to provide an
corporation, Townsends, Inc., aDelaware employee to Towsnsends to conduct drug
corporation, and Borg Warner Corporation, a investigations. The employee these defendants
Delaware corporation, Defendants. supplied Townsends was defendant Bernard Trice ("
Civ. A. N0. 92C—08-029. Trice"). Trice began working at Townsends, and
he befriended and ultimately bedded Beckett.
Submitted:Apri120, 1994. Beckett alleges Trice befriended, dated, bedded,
Decided: June 6, 1994. and moved in with her as a part of Trice's
employment and investigation. Trice then solicited
marijuana from plaintiff, and as a result thereof,
A. Dean Betts, Jr., Dept. of Justice, Wilmington, Beckett was arrested and charged with delivery of
and Georgetown, for John R. Garey. marijuana and maintaining a dwelling for the
Edward C. Gill, Georgetown, for plaintiff purchases and delivery of drugs. The State
David M. Lukoff, Wilmington, for defendant ultimately nolle prossed the charges.
Bernard Trice.
Barry M. Willoughby, Wilmington, for defendant
Townsends, Inc. FNI. The defendants dispute most of these
W. Wade W. SCOt`t, Wilmington, t`01” dCt`C]1l`l3.I1tS 3]Ieg3ti()n5_
Wells Fargo, Merit Services, Ltd. and Borg Warner
Corp. Beckett alleges no probable cause existed to
institute the investigation and actions against her,
MEMORANDUM OPINION and defendants‘ actions were intentional and taken
with malice. She claims that as a result of
LEE, Judge. defendants actions, she lost her job, incurred
*1 The pending action is one which plaintiff attorney's fees in defending criminal charges and in
Sabrina Beckett ("Beckett") has brought against the expunging her criminal record, and suffered
various defendants alleging, amongst other claims, embarrassment, mental anguish, emotional harm,
malicious prosecution, abuse of process, and damage to her reputation
harassment, invasion of privacy, and intentional
and./or negligent infliction of emotional hH1Tn. In As noted earlier, Beckett scheduled the deposition
COm`1€Cti0I1 with this litigation, Beckett 1'10tiC€Cl the gf Jghn R, G3rey_ NIL Garey filed the pending
deposition of John R. Garey, a Deputy Attorney motion for protective order, and in connection
General with the Department of Justice of the State therewith, submitted an affidavit. In that affidavit,
of Delaware. Mr. Garey has tiled a motion seeking Mr. Garey states the following. He was the
a protective order which would prevent the taking prosecutor assigned to the State's criminal case
of his deposition testimony. This is the Court's against Beckett. After receiving the evidence in the
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Case 1 :04-cv-01286-JJF Document 46-3 Filed O1/05/2006 Page 2 ofpggc 3 OH
Not Reported in A.2d Page 2
Not Reported in A.2d, 1994 WL 3 19171 (Del.Super,)
(Cite as: Not Reported in A.2d)
case, he decided not to proceed to trial and, on or inquire as to what facts and infomation were
about March 26, 1991, he filed a notice of nolle brought to Mr. Garey's personal knowledge
prosequi with the Court. Mr. Garey did not regarding the events ofthe case. Beckett contends
personally involve himself in the criminal the disposition of the criminal charges is an element
investigation. Rather, the investigating Delaware of the civil action and therefore, relevant. She also
State Police Officer, Detective William West, argues the deposition testimony is necessary to
provided to Mr. Garey all the facts and other show defendants wrongfully withheld information
evidence he relied upon for his decision. Mr. from the police and prosecutor and the charges were
Garey states he made the decision to nolle prosse dropped when this infomiation came to the
the charges in his official capacity as Deputy prosecutors attention. Finally, she contends Mr.
Attorney General assigned to the case. Garey waived any privilege when he voluntarily
disclosed certain information to her counsel.
Mr. Garey further asserts in his affidavit that, based However, because Beckett did not submit an
upon conversations with Beckert's attomey, it is his affidavit to support this assertion, the Court ignores
understanding that the purpose of the deposition is it.
to question him on: 1) his decision not to prosecute
the charges against plaintiff; 2) his reasoning for
this decision; and 3) the underlying facts on which DISCUSSION
he relied. Finally, Mr. Garey asserts that requiring
him to reveal this information would hamper him in In Super.Ct.Civ.R. 26(c), it is provided in pertinent
his future performance of his duties as a Deputy part:
Attomey General because he would not be able to Upon motion by the person from whom discovery
perform his duties if he has to worry that every is sought, and for good cause shown, the Court
decision he makes can be examined and questioned may make any order which justice requires to
in a subsequent civil proceeding. protect a pany or person from annoyance,
embarrassment, oppression, or undue burden or
*2 Mr. Garey seeks the protective order on several expense, including one or more of the following:
grounds. He argues that the "deliberative process (1) That the discovery not be had; (2) that the
privilege" would protect any discretionary discovery may be had only on specified terms and
decisions. He also argues he cannot be compelled conditions, including a designation of the time or
to be an expert witness on behalf of a litigant. place; (3) that the discovery may be had only by a
Finally, he asserts he is entitled to invoke the method of discovery other than that selected by the
governmental privilege. party seeking discovery; (4) that certain matters not
be inquired into, or that the scope of the discovery
In her response to this motion for protective order, be limited to certain matters; (5) that discovery be
Beckett does not submit any affidavit; she merely conducted with no one present except persons
makes assertions. She asserts that Trice wrongfully designated by the Court; (6) that a deposition after
instituted the prosecution by sleeping with her in being sealed be opened only by order of the Court;
order to investigate her; that she believes Trice did (7) that a trade secret or other confidential research,
not give this information to the police and development, or commercial information not be
prosecutor, and instead, is shifting the blame for the disclosed or be disclosed only in a designated way;
prosecution to the Magistrate, the police and the (8) that the parties simultaneously file specified
prosecutor; Mr. Garey's testimony is necessary to documents or information enclosed in sealed
show Trice's story is not correct; and his testimony envelopes to be opened as directed by the Court.
may show the charges against Beckett were dropped
once Mr. Garey learned about Trice's conduct.
Since Mr. Garey clearly has standing to seek a
Beckett represents she will not inquire into Mr. protective order under this rule, the issue before the
Garey's discretionary deliberative process but will Court is whether he has shown good cause for such.
© 2005 il-*l'1OH1SOHfW est. No Claim to Orig. U.S. Govt. Works.
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Case 1:04-cv—O1286-JJF Document 46-3 Filed O1/05/2006 Page 3 ofpggc 4 Oi-5
Not Reported in A.2d Page 3
Not Reported in A.2d, 1994 WL 319171 (Del.Super.)
(Cite as: Not Reported in A.2d)
*3 I begin with Mr. Garey's contention that he is may "not be required to disclose facts coming to his
protected by the "deliberative process privilege". knowledge for the use of the state in its prosecution
Beckett has represented that she does not intend to of the accused.” State v. Brown, Del.Oyer and
question him regarding his discretionary decision Tenn., 36 A. 458, 463 (1896). Communications
making process, and therefore, this issue is moot. between witnesses andthe prosecutor
However, I note, as an aside, that the “deliberative are regarded as secrets of state, or matters the
process privilege" does not exist in Delaware. disclosure of which would be prejudicial to the
public interests. They are therefore protected, and
Next is Mr. Garey's contention that he cannot be all evidence thereof excluded, from motives of
compelled to testify as an expert witness for public policy.
Beckett. Such a situation would occur if Beckett
sought Mr. Garey's opinion on whether the [dl at 463-64. Accord Lepkowskf v. Handsberry,
investigation was legally proper. Mr. Garey‘s Del.Snper., C.A. No. 84C-NO-117, Bifferato, J.
contention is correct, particularly where Beckett has (July 23, 1986). Thus, a common law
not made any showing that Mr. Garey is a material governmental privilege exists here. FN2
witness. State v. McLoughlin, Del.Super., 514 A.2d
1139 (1986).
FN2. There is relatively little law in
However, Beckett contends she is seeking to depose Delaware dealing with governmental
Mr. Garey only as a fact witness. She wants to privilege_ In the ease gf Morris it
determine what people told him regarding the Avaliaae, Del.Super., 272 A.2d 344 (1970)
events of the case and when they gave him this , a governmental privilege was fouud to
l.1'lfO1'I`1'lHlZlOI'1. MI. Garey HSSCHS 3. gOVBI`]1H1CI1l£3l exist way gf mandate 3 Stgtg
privilege with regard to any questions seeking executive body promulgated pursuant to a
factual lY1l`0FH1¤tl0H- legislative general enabling statute. On
the other hand, in Lejerts v. JC. Penney
In Delaware Rules of Evidence (“D.R.E.") 508, it is Company, l)e]_5uper_, (j_A_ No
provided: SSCJN-87, Balick, J. (August 3, 1989), no
(a) Claim of Privilege. If the law of the United goverruueutal irriruui-iity was found to eXiSt_
St3.lC€S Cl'€3l€S 3 gOVCI'I'lII'1€1'1l3.l pI`lVll€g€ that t.l'1€ thgfgby prgcluding [hc appljgatjgn of
courts of this State must recognize under the l)_R_E_ 5()3(b)_
Constitution of the United States, the privilege may
be claimed as provided by the law of the U11it€d Once a privilege is found to exist under D_R_E_
States. 508(b), then the Court must detemiine the
(b) Recognition of Privilege. A governmental applicability of D,R.E. 508(c). The Court may
privilege existing ni eeinmen law. er ereeied by ihe make further orders necessary with regard to
Constitution, statute or court rule of this State, Shell problems posed by the privilege if it appears a party
be recognized. may be deprived of material evidence upon the
(C) Effect of Sl.ISt3l1'llIlg 3 ClH.lH'l of C()u_]·t'g Sustaining the prjvilggg Before
govemmental privilege is sustained and it appears such an order, however, the non-privileged party
that a party is thereby deprived of material has the duty to establish it is deprived of material
evidence, the court shall make any further orders evidence due to the assertion of the privilege.
the interests of justice require, including striking the Greenspan v. Stare, N.J.Super.A.D., 416 A.2d 449
testimony of a witness, declaring a mistrial, finding (1980).
upon an issue as to which the evidence is relevant or
dismissing the action. *4 Here, Beckett's position is not well—developed.
She has not established that the evidence she seeks
from Mr. Garey is material evidence to her case.
In Delaware, the law is that the attorney general Furthermore, she has not established that the
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Case 1:04-cv-01286-JJF Document 46-3 Filed O1/05/2006 Page 4 ofpiligc 5 OH
Not Reported in A.2d Page 4
Not Reported in A.2d, 1994 WL 319171 (Del.Super.)
(Cite as: Not Reported in A.2d)
evidence, if material, cannot be obtained from any
other source. It is only upon the establishment of
such that this Court can consider making any order
which takes the privilege into account.
Based on the foregoing, the Court holds that the
testimony Beckett seeks from Mr. Garey is
privileged and accordingly, enters an order
prohibiting the taking of his deposition testimony.
IT IS SO ORDERED.
De1.Super.,1994.
Beckett v. Trice
Not Reported in A.2d, 1994 WL 319171
(Del.Supcr.)
END OF DOCUMENT
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