IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JANE and JOHN DOE, guardians ad litem
for JOHN DOE 2, a minor, and JANE and
JOHN DOE,

Plaintiffs,
V. C.A. No. $17C-02-008 RFS
PAUL SOMERSET, et al.

Defendants.

OPINION

Date Submitted: April 8, 2019
Date Decided: August 2, 2019

Plaintiffs’ Motion for Reconsideration of Commissioner’s Order - GRANTED
Raeann Warner, Esquire and Thomas C. Crumplar, Esquire, Jacobs &
Crumplar, P.A., 750 Shipyard Drive, Suite 200, Wilmington, Delaware 19801,
Attorneys for Plaintiffs.
Jessica L. Reno, Esquire, Mark L. Reardon, Esquire, and Brian D. Ahern,

Esquire, Eckert Seamans Cherin & Mallot, 222 Delaware Avenue, 7" Floor,
Wilmington, Delaware 19801, Attorneys for Plaintiffs.

STOKES, R. J.
ORDER

The Court having duly considered the Motion for Reconsideration of
Commissioner’s Order filed by John and Jane Doe, individually and as guardians
ad litem of John Doe 2, a minor (collectively, the “Defendants”) pursuant to
Superior Court Civil Rule 132 (a) (3) and the response thereto filed by Paul,
Daniel, and Jason Somerset (collectively, the “Plaintiffs’”), IT APPEARS THAT:

1. This personal injury action was filed by the parents of a minor on their
behalf and on behalf of their child against Paul Somerset, Dan Somerset, and Jason
Somerset (“Jason”). Jason is a minor and the Somersets’ adopted son. The
complaint alleges that Jason sexually assaulted the Plaintiffs’ child.

2. Felony sex charges are currently pending against Jason in Family Court
throughout several competency evaluations Jason has consistently been deemed
incompetent to participate in his own defense. That case currently remains
pending.

3. The progress of this case has been hindered due to the parallel criminal
proceeding. Defendants’ request for a continued stay was denied by this Court by
order dated January 26, 2018. Going forward, discovery directed to Jason was
prohibited in light of the criminal proceeding, and it was made clear that his Fifth

Amendment rights were to be respected.
4. In response to the Plaintiffs’ request for production of documents, the
Defendants agreed to produce certain educational and medical documents
(including neuropsychological evaluations, mental competency evaluations, and
therapy notes) subject to an “attorneys’ eyes only” designation.

After review of those documents, the Plaintiffs moved for a legal
determination that the documents should not be deemed “attorneys” eyes only” and
for an order compelling production of the documents without that designation. The
Defendants opposed this motion and moved for a protective order regarding the
documents. As grounds for their opposition, the Defendants expressed concern
that, given the pendency of the criminal case against him, Jason’s Fifth
Amendment rights would still be jeopardized notwithstanding the limitation of the
discovery.

5. The Commissioner’s decision was released on March 7, 2019 (the
“Order”).'! The Commissioner conducted an in camera review of all the
documents and determined that, going forward, only 59 of those documents would
remain subject to the “attorneys’ eyes only” designation. The Order stated that
continued protection of the selected documents was necessary as they “contain
statements or information which incriminate Jason or which may lead to

information which may incriminate him.” Any documents not selected were

 

'D.L. 94.
deemed acceptable for review by the Plaintiffs and for use in depositions or other
discovery.

6. The Plaintiffs have now moved for reconsideration of the Order.” They
assert that the determination that consideration of Jason’s Fifth Amendment rights
warrants continued protection of the 59 selected documents is contrary to law and
should be changed. Specifically, the Plaintiffs argue that the document requests
were directed to Paul and Daniel Somerset and that they cannot assert the Fifth
Amendment privilege on Jason’s behalf. The Plaintiffs also contend that the
documents are not protected under the Fifth Amendment because they are business
records of schools and doctors and their creation involved no compelled
disclosures by Jason. Finally, the Plaintiffs argue that the Order was clearly
erroneous as the Defendants never properly asserted the Fifth Amendment
privilege.

7. The Defendants oppose the Plaintiffs’ motion for reconsideration on the
grounds that the ongoing parallel criminal proceeding against Jason requires that
his Fifth Amendment rights be respected in the civil discovery process. The
Defendants assert that as Jason is a minor who is mentally incompetent to
participate in his own defense in the criminal trial, his parents are the only ones

capable of asserting any privilege on his behalf. The Defendants further argue that

 

* DI. 100
fundamental fairness concerns warrant protection of the documents and that failure
to do so would cause grave injustice to Jason.

8. Pursuant to Superior Court Civil Rule 132, Commissioners are
“empowered to conduct non case-dispositive hearings and to hear and determine
any non case-dispositive matter pending before the Court, as well as to conduct
case-dispositive hearings and to submit to a judge of this Court proposed findings
of fact and recommendations for the disposition, by a judge, of any such case-
dispositive manner.” The standard of review for a commissioner’s decision
depends on whether the matter heard was case-dispositive or non case-dispositive.*
The issuance of a protective order with regard to discovery documents is a pretrial
matter that is non case-dispositive. Rule 132 provides that a judge may reconsider
a commissioner’s order “only where the movant demonstrates that the
commissioner’s order is based upon findings of fact that are clearly erroneous, or is
contrary to law, or is an abuse of discretion.”

9. The first issue is whether Jason’s parents can assert the Fifth
Amendment privilege on his behalf in response to discovery requests directed to

them. The Plaintiffs assert that, as the Fifth Amendment protects against se/f-

 

> Continental Cas. Co. v. Borgwarner Inc., 2016 WL 3909467, at *2 (Del. Super.
July 14, 2016).

4 Td.

> Doe v. Slater, 2014 WL 6669228, at *1 (Del. Super. Nov. 12, 2014).

5
incrimination, Jason’s parents cannot claim the privilege as they are not personally
in danger of facing any criminal charges for the events at issue here. In the
Plaintiffs’ view, whether the documents at issue contain incriminating evidence
against Jason is immaterial to this analysis. In support, the Plaintiffs cite to case
law evidencing the principle that the Fifth Amendment is a personal privilege that
can only be invoked when documents or statements containing incriminating
evidence are directly sought from the very person they incriminate.®

The problem with the Plaintiffs’ argument on this issue is that it fails to
account for the special, legally recognized, relationship between parents and their
minor children. Neither of the cases cited by the Plaintiffs address the actual
situation currently under review.’ As Jason is a minor child with documented
developmental and cognitive disabilities, his parents are the only people that could
effectively assert his Fifth Amendment, or any other, privilege.’ Moreover, given

traditional living arrangements, parents will, as a matter of necessity and practical

 

° Couch v. United States, 409 U.S. 322 (1973); Fisher v. United States, 425 U.S.
391 (1976).

7 See Couch, 409 U.S. 322 (involving a taxpayer’s business and tax records in
possession of her accountant); Fisher, 425 U.S. 391 (involving a taxpayer’s
financial documents prepared by an accountant and in the possession of the
taxpayer’s lawyer).

® Notably, Delaware’s lawyer-client privilege and mental health provider,
physician, and psychotherapist-patient privilege both explicitly provide that
guardians may invoke those privileges on a person’s behalf. See D.R.E. 502 (c),
503 (c).
reality, be in effective and/or sole possession of any documents concerning their
minor child of the type at issue here. Therefore, the ultimate consequence of
accepting the Plaintiffs’ position is that documents that would be in a minor’s
control were they an adult are rendered completely unprotected by the Fifth
Amendment so long as an opposing party directs discovery requests seeking such
documents to the minor’s parents. This is an unjust and unacceptable outcome.
Accordingly, I reject the Plaintiffs’ argument and find that the Commissioner
correctly allowed Paul and Daniel Somerset to assert the Fifth Amendment
privilege on behalf of Jason in this case.

10. The next question is whether the Order correctly determined that the 59
selected documents are protected under the Fifth Amendment and should remain
subject to the “attorneys’ eyes only” designation.” Current Fifth Amendment
jurisprudence stems from the United States Supreme Court’s opinion in Fisher v.
United States, 425 U.S. 391 (1976). In Fisher, the Court made clear that the Fifth
Amendment only applies “when the accused is compelled to make a testimonial
communication that is incriminating.”'® In Fifth Amendment cases concerning the

disclosure of documents, the Court has fashioned two categories for analysis:

 

” As I have already determined that Jason’s Fifth Amendment right against self-
incrimination may be asserted by his parents on his behalf, the question becomes
whether Jason, viewed as an adult, could use this privilege and refuse to produce

the documents in question.
'0 Fisher, 425 U.S. at 408.
business records, and non-business private records. An individual cannot claim the
Fifth Amendment privilege with regard to business records, even if they are in his
own possession.'' This is because such documents are typically voluntarily
prepared and the information they contain voluntarily supplied.'? However, even if
the contents of a document are not privileged, in certain situations the act of
producing them may be if such act is compelled, testimonial, and incriminating.'?
The circuit courts split on whether the Fifth Amendment privilege should cover
wholly personal, private records. The Third Circuit has held that a person has a
“rightful expectation of privacy” with regard to personal papers and that the Fifth
Amendment privilege therefore prohibits their compelled production.'4

In the current case, none of the selected documents at issue can be fairly
deemed “private records” for a Fifth Amendment analysis. None of these
documents were personally prepared by Jason with the intention of keeping them
private. The vast majority of the documents were prepared by medical
professionals or others in furtherance of Jason’s treatment and continuing
education. Although these documents certainly include information of a more

personal nature than that typically included in a “business document,” they were all

 

| United States v. Doe, 465 U.S. 605 (1984).

'2 Td. at 612 n. 10.

'3 Td. at 613.

'* In re Grand Jury Proceedings, 632 F.2d 1033, 1044 (3d Cir. 1980).

8
voluntarily prepared and any information from Jason included in them was not
obtained through compulsion. As business records, the selected documents are not
subject to the Fifth Amendment protections simply because they may contain
incriminating information.

Additionally, the selected documents are not protected under any Fifth
Amendment “act of production” privilege. Indeed, the manner in which they were
produced supports the conclusion that they should not be deemed privileged going
forward. The Defendants were aware of the potential Fifth Amendment issues in
this case from the start. When responding to the Plaintiffs’ requests for production,
they redacted a small portion of text from one document. This redaction was
accompanied by an assertion of privilege.'> The Defendants agreed to produce all
other documents pursuant to the “attorneys’ eyes only” designation. The
Defendants have not addressed how this two-tiered production process is required
by the Fifth Amendment. The Court is unaware of any authority supporting the
use of an “attorneys’ eyes only” designation as a substitute for a genuine Fifth

Amendment claim.

 

'S The Plaintiffs have not challenged this redaction.

9
Under current Fifth Amendment law the 59 selected documents were not
privileged and should not remain subject to the “attorneys’ eyes only” designation.
Neither the content of these documents nor their production involves any
compelled information or action from Jason.'®

11. Considering the selected documents are not protected under Jason’s Fifth
Amendment rights, the issue of whether the privilege was properly asserted is
moot.

WHEREFORE, IT IS HEREBY ORDERED that the Plaintiffs’ March 18, 2019

Motion for Reconsideration of Commissioner’s Order is GRANTED.

 

'© The Defendants’ assertion that this finding could harm Jason if the Plaintiffs take
information learned from this civil discovery and use it on the witness stand during
the criminal proceedings is misplaced. The Court finds that the Plaintiffs are
unopposed to a ruling of incompetency in Family Court. Defendants’ counsel
explicitly attributed this position to the Plaintiffs in the presence of Plaintiffs’
counsel. See Transcript of Teleconference Before Commissioner Howard, Feb. 13,
2019, at 15:1-7. Plaintiffs’ counsel did not object to this characterization, and such
silence indicates consent and agreement. The circumstances dictated that
Plaintiffs’ counsel speak up and notify the Commissioner if the statement was
inaccurate. See Brittingham v. Bd. of Adjustment of City of Rehoboth Beach, 2005
WL 170690, at *6 (Del. Super. Jan. 14, 2005). Nor is the State opposed to a
finding of incompetency, which appears to be inevitable. See Transcript of
Hearing Before Commissioner Howard, Oct. 12, 2018, at 8:14-18.

In the unlikely event Jason is found to be competent, the documents at issue
contain no allegations of rape like what is alleged in the Complaint. They would
not support a DRE 404 (b) finding of prior bad acts for an appropriate noncharacter
purpose. An actual Fifth Amendment concern would not even reach bad act
evidence. See Eden v. Oblates of St. Francis de Sales, 2007 WL 4722830, at *3
(Del. Super. Dec. 14, 2007). The only probative value, if any, would be in the civil
claim against the parents for a nonhearsay purpose — i.e., were they on notice of
Jason’s potential misbehavior.

10
