Free Motion to Quash - District Court of Delaware - Delaware

Case 1:04-cv—01286-JJF Document 42-4 Filed 12/28/2005 Page 1 o1P3ge 2 of 4
Not Reported in A.2d Page I
Not Reported in A.2d, 1999 WL 743082 (Del.Super.)
(Cite as: Not Reported in A.2d}
I·I Williams was visiting with Ms. Hogan at the house.
Only the Westlaw citation is currently available. Also present in the house that day was Debra
UNPUBLISHED OPINION. CHECK COURT Minor. Sometime in the early morning, it is alleged
RULES BEFORE CITING. that an unknown assailant set tire to the structure.
Superior Court of Delaware. As a result of this fire, Ms. Williams fell from a
Bertha WILLIAMS and Robert Wisko, as Executor second story window and was injured. Debra Minor
of the Estate of Debra Lee Minor was killed. FN1 Both Plaintiffs brought an action
v. against Ms. Alexander alleging that she negligently
Joyce ALEXANDER left flammable material on the front porch of the
No. 98C—05-036 WTQ· house, causing a hazardous condition.
June 29, 1999.
FN]. Plaintiff Robert H. Wisko is the
Executor of the Estate of Debra Lee Minor.
Letter Opinion and Order on P1aintiffs' Motion to
Compel—Motion Granted in part and Denied in part. The State Fire Marshal conducted an investigation
of the fire. The Fire Marshal examined the scene,
Erie M. Doroshow, Esquire, Stephani J. Ballafd, interviewed witnesses, and collected physical
Esquire, Doroshow, Pasquale, Krawitz, Siegel & evidence. The current file on the incident contains
Bhaya, Wilmington. notes and observations, transcriptions of interviews,
James J. Hanley, Esquire, Department of Justice, and scientific test results. The investigation is
Wilmington. presently classified as a possible arson.
Richard Pell, Esquire, Tybout Redfeam & Pell,
VViiII1.l.HgtOI`i- In January 1995, the Plaintiffs issued a subpoena to
Roy Shiels, Esquire, Brown Shiels & Chasenov, the State Finn Marshal requesting "a11 documents
Dover. relating to the fire that happened on 6/29/96 at 102
E. 40th Street, Wilmington, DE 19S02.“ PNZ The
QUILLENJ- Fire Marshal objected, stating that the documents
*1D¢¤rC¤¤¤S¤!= requested were privileged because they are part of
_ _ an ongoing criminal investigation and that the
This is the Ccutrs Qpinicri on P1ai¤¤ffs' Menon to ietesse of such mrennatien eettta compromise the
gopipel th;) State rlliire Marishal és comply Witt; 3 Q]']ti_]?€ investigation. FN3 Plaintiffs now bring 3
u Poem ucc? °°l1m· °I ° IBFEODS S as Motion to Compel the production of the requested
herein, the Motion is GRANTED in part and dccummw
DENIED in pan.
FN2. Reply Brief of Plaintiff] Bertha
FACTS wiitisms, sittseit Ne. 2 tote. Ne. ss).
Defendant Joyce Alexander owned a house at 102 FN} Reply Brief Of Plaintiff, Bertha
E. SlII`€€l§, Wilmington, Delaware. Ms. N0. 3 NO-
Alexander rented rooms in the house to several ’
tenants, including Dorothy Hogan and Plaintiff DISCUSSION
Debra Minor. On June 29, 1996, Plaintiff Bertha
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Case 1:04-cv-01286-JJF Document 42-4 Filed 12/28/2005 Page 2 oflglgc 3 OM
Not Reported in A.2d Pogo 2
Not Reported in A.2d, 1999 WL 743082 (Del.Super.)
(Cite as: Not Reported in A.2d)
Delaware Rule of Evidence 508(b) states that "[a] investigative reports to further the effective
governmental privilege existing at common law, or enforcement of State prosecutions "by encouraging
created by Constitution, statute or court rule of this full and frank disclosure of all information, even by
State, shall be recognized." There does not appear those potentially liable; and on the other hand,
to be any constitutional or statutory privilege of liberal disclosure of all relevant, non-privileged
snoh info;mnoon_ FN4 In fact) rho gtatute that information to litigants in civil actions." Id. In
speaks of protecting Fire Marshal records, 16 Del. Cooney, after an extensive examination of cases
C § 6625, is limited to those investigations which related to governmental privilege, the District Court
involve juveniles. To determine whether a privilege concluded that a common elementinthese cases
exists, we must look to the common law. has been the Courts' refusal to require disclosure of
those portions of the reports or files in issue
embodying the statements of third party witnesses,
FN4. Although the Freedom of but requiring the government agencies to divulge
Information Act expressly excludes " those portions of the files consisting of factual
[i]nvestigatory files compiled for civil or investigations by agency personnel; and in some
criminal law-enforcement purposes instances, conclusions drawn therefrom as to the
including pending investigative files" from causes ofthe accident.
public inspection, the Act does not create a
governmental immunity. 29 Del.C. § Ia'. at7l6.
l0002(d)(3).
In this case, the fire occurred in June 1996, three
There appears to be a governmental privilege for years ago. The statute of limitations for arson is five
facts obtained by the Attorney General for its use in years. The State may conceivably be prejudiced if
criminal prosecutions. Beckett v. Trice, Del.Super., such information is released before this five year
C.A. No. 92C-08-029, 1994 WL 319171, Lee, J. window closes. On the other hand, the information
(June 6, l994)(citing State v. Brown, Del. Oyer. and is certainly material to the Plaintiffs' claim.
Term., 36 A. 458, 463-64 (1896)). As the Brown Plaintiffs' claim is for negligence on the part of the
Court stated, communications between witnesses of Defendant in allowing the fire to occur, and the Fire
the State and t}1e Attorney General "are regarded as Marshal's investigation deals directly with those
secrets of the State, or matters the disclosure of issues. It would also be difficult for the Plaintiffs to
which would be prejudicial to the public interest. duplicate the efforts of the Fire Marshal with
They are therefore protected, and all evidence respect to site examinations, scientific and physical
thereof excluded, from motives of public policy." Id. evidence. Finally, the Fire Marshal has had almost
at 463-64. The Court is satisfied that a three years in which to proceed with its case, and
governmental privilege exists for material obtained has yet to take any affirmative action. The statute of
in the furtherance of a criminal investigation, limitations does not necessarily fix the period for
whether it be collected by the Attorney General or the qualified privilege. Weighing the interests of the
the Fire Marshal. This privilege, however, is not State and the parties, I find that the State must
absolute, and is subject to qualification. Guy v. disclose certain portions of its file relating to the
Judicial Nominating Commission, Del.Supr., 659 fire. The Plaintiffs would suffer great hardship in
A.2d 777, 783, appeal dismissed by 670 A.2d 1338 proving their case without such information, and the
(1995). Fire Marshal has had three years to pursue an
investigation.
*2 When deciding whether a privilege exists, the
Courts must weigh the competing interests of the The Fire Marshal is ordered to disclose all material
State and the parties seeking the infoymarion_ relating to the factual investigation of the fire,
Cooney v. Sun Shipbuilding & Drydock Company, including reports regarding scientific and physical
E.D. Pa., 288 F.Supp. 708, 714 (1968). On the one evidence and any conclusions drawn therefrom by
hand, there is the interest in protecting the State's State officials. The Fire Marshal is not, however,
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Case 1 :04-cv—01286-JJF Document 42-4 Filed 12/28/2005 Page 3 oflglge 4 OM
Not Reported in A.2d Page 3
Not Reported in A.2d, 1999 WL 743082 (DeI.Super.)
(Cite as: Not Reported in A.2d)
required to disclose any information relating to
interviews with non-parties, but is required to
disclose information (including transcripts) related
to interviews with parties, including Defendant Ms.
Alexander. As I see it, the Defendant should know
what is in her own statement. In order to mitigate
any damage to an ongoing investigation, all
infomiation disclosed shall be subject to a .
protective order to prevent information from
disseminating beyond the necessary persormel
involved in this case. See Superior Court Civil Rule
26(c). The Attomey General is requested to draft
and submit, on notice, such an order within ten
days. Hopefully the Plaintiffs will stipulate as to the
form of order. The Plaintiffs‘ Motion to Compel is
GRANTED in part and DENIED in part. An order
will be entered upon presentment.
Del.Super.,l999.
Williams v. Alexander
Not Reported in A.2d, 1999 WL 743082
(Del.Super.)
END OF DOCUMENT
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