Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-01286-JJF Document 46-2 Filed 01/05/2006 Page 1 ofliage 2 of 3
Westlaw
Not Reported in A.2d Pagtl l
Not Reported in A.2d, 2002 WL 264533 (Del.Super.)
(Cite as: Not Reported in A.2d)
H physician knew or should have known what
Only the Westlaw citation is currently available. information he provided to Division, and second
UNPUBLISHED OPINION. CHECK COURT physician did not show undue hardship in being
RULES BEFORE CITING. required to discover relevant evidence like other
Superior Court of Delaware. civil litigants.
Gabriel G. ATAMIAN, MD, Plaintiff,
v.
Arezoo A. BAHAR, DDS, and Collins Dental Upon Division of Professional Regulation's Motion
Association, Defendants. to Quash Subpoena and Notice of Deposition Duces
N0. CIV.A. 01C-03—031HDR. Tecurn. Granted.
Submitted: Feb. 15, 2002. Gabriel G. Atamian, MD, Dover, pro se.
Decided: Feb. 22, 2002. Michael B. Miller, Esq., Deputy Attorney General,
Department of Justice, for the Division of
First physician served subpoena on Division of Professional Regulation.
Professional Regulation seeking investigative
records regarding second physician based upon tirst ORDER
physician`s complaints to Division. Division moved
to quash subpoena. The Superior Court, Kent RIDGELY, President J.
County, Henry duPont Ridgely, J., held that *1 This 22nd day of February, 2002, it appears that:
qualified govemment privilege applied to protect
Division's investigative records from disclosure. (1) The Division of Professional Regulation seeks
to quash a subpoena served upon one of its
Motion granted. employees by the Plaintiff in this matter, Gabriel G.
Atamian, MD. On June 6, 2001, Plaintiff sewed a
West Headnotes Subpoena and Notice of Deposition Duces Tecum
on Gayle L. Franzolino, Administrative Assistant,
Witnesses 410 €?’216(1) Division of Professional Regulation ("The Division"
), seeking “any and all investigative records
410 Witnesses regarding Gabriel G. Atamian by the Division of
41011 Competency Professional Regulation? Plaintiff has explained
4l0II(D) Confidential Relations and that he wants to obtain records of an investigation
Privileged Communications of Dr. Bahar, one of the defendants here, based
4l0k216 Communications to or upon his own complaint to the Division. The State
Information Acquired by Public Officers moves to quash the Subpoena and Notice on the
4l0k2l6(l) k. In General; Official or grounds that the investigative file is privileged.
Governmental Privilege. Most Cited Cases
Qualified governmental privilege applied to protect (2) The Freedom of Information Act exempts from
Division of Professional Regulation‘s investigative disclosure investigative files compiled for civil or
records regarding first physician from disclosure to criminal law-enforcement purposes. FN} Because
second physician, who made complaints regarding investigations by the Division can result in
first physician to Division, where second physician`s prosecution by tho Dooninnonf of Jnsfioo, FN2 fno
iritcrest in <>b¢¤i¤ii¤s thi? i¤f¤r¤i¤ti¤¤ rested fmm eitemptitm Wettiti ttppiy in that eeee to any request
his civil complaint against first physrcian, second by Plaintiff undcr fno Freedom of Infomation Act-
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Case 1 :04-cv-01286-JJF Document 46-2 Filed O1/05/2006 Page 2 oflggc 3 Of?)
Not Reported in A.2d Page 2
Not Reported in A.2d, 2002 WL 264533 (Del.Super.)
(Cite as: Not Reported in A.2d)
Plaintiff seeks the same information by subpoena. Atamian v. Bahar
Not Reported in A.2d, 2002 WL 264533
(Del.Super.)
FN1. 29 Del. C. § 10002(d)(3). This
section excludes such files from so much END OF DOCUMENT
as a designation as a "public record.“
FN2. 29 Del. C § 8807(h).
(3) It is well established that a qualified
governmental privilege exists in the common law
for material obtained for use in prosecutions by the
attorney general. FNB A court, presented with the
possible application of this privilege, is to weigh the
competing interests of the State and the party
seeking the information. FN4
FN3. Williams v. Alexander, Del.Super.,
C.A. No. 98C—05—036, 1999 WL 743082 at
*1, Quillen, I. (June 29, 1999).
FN4.ld.
(4) Plaintiffs interest in obtaining this infomiation
derives from his civil complaint against Dr. Bahar.
The State's interest in protecting any investigative
records it has is to further the effective enforcement
of the professional licensing statutes. If pennitted,
discovery of such records may discourage some
complainants from bringing pertinent information to
the Division's attention. Protection of the material
encourages full and frank disclosure of information
to the Division. Plaintiff knows or should know
what information he provided to the Division. He
has not shown any undue hardship in being required
to discover relevant evidence like other civil
litigants. Plaintiff has not demonstrated in this case
that his need for this information outweighs the
interests of the State in protecting its investigative
records. I am satisfied that the qualified
governmental privilege applies in this case.
NOW, THEREFORE, IT IS ORDERED that the
Division of Professional Regulation's Motion to
Quash Subpoena and Notice of Deposition is
GRANTED.
Del.Super.,2002.
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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