           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                     IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                        )
                                         )
      V.                                 )   ID No. 1401014417
                                         )
FRANK DAVENPORT,                         )
                                         )
             Defendant.                  )

                            Submitted: November 12, 2014
                             Decided: November 17, 2014

                          Upon Defendant’s Motion to Compel
                                    GRANTED

      Defendant Frank Davenport is charged with murder in the first degree and

associated charges in connection with allegations arising from the death of Holly

Wilson on or about January 16, 2010. On January 21, 2014, the grand jury

returned an indictment against Defendant. The State is not pursuing the death

penalty. Trial is scheduled to begin on January 12, 2015, with jury selection

scheduled to begin on January 8, 2015.

      The State has disclosed information related to its expert witness, Dr.

DiMaio, including information sent by the State to its expert for review but the

State has refused to disclose to Defendant an internal Department of Justice

memorandum which was provided to the State’s expert witness. The State takes

the position that its internal memorandum is attorney work product which is not

subject to disclosure. Defendant has moved to compel on the grounds that the
State has waived the work product privilege by providing a copy of the

memorandum to its expert witness. The State opposes Defendant’s motion to

compel. This is the Court’s Order granting Defendant’s motion and requiring that

the State produce the internal memorandum immediately if the State intends to

present Dr. DiMaio, the expert witness to whom the State provided the document,

at trial.

         Upon consideration of Defendant’s motion to compel and the State’s

opposition thereto, the Court finds as follows:

    1. As a general rule, an internal State memorandum is not discoverable.

         Superior Court Criminal Procedure Rule 16 (a)(2) states:

                  Except as provided in paragraphs (A), (B), (D) and (E) of
                  subdivision (a)(1), this rule does not authorize the discovery or
                  inspection of reports, memoranda, or other internal state
                  documents made by the attorney general or other state agents in
                  connection with the investigation or prosecution of the case, or
                  of statements by state witnesses or prospective state witnesses.

    2. The first three noted exceptions to the discovery bars of Rule 16(a)(2) are

         not applicable here because the document at issue is not a statement of

         Defendant; 1 the document is not related to Defendant’s prior record;2 and the

         document is not reports of examinations and tests.3

    3. However, the fourth noted exception is applicable. Rule 16(a)(1)(E) states:

1
  Super. Ct. Crim. R. 16(a)(1)(A).
2
  Super. Ct. Crim. R. 16(a)(1)(B).
3
  Super. Ct. Crim. R. 16(a)(1)(D).

                                              2
                  Upon request of a defendant, the state shall disclose to the
                  defendant any evidence which the state may present at trial
                  under Rules 702, 703, or 705 of the Delaware Uniform Rules of
                  Evidence. This disclosure shall be in the form of a written
                  response that includes the identity of the witness and the
                  substance of the opinions to be expressed.

         In State v. Sailer,4 the Superior Court considered the circumstances under

         which a party must disclose any facts and data provided to and relied upon

         by a party’s expert witness.5 The Court, while considering the language of

         Rule 16(a)(1)(E), stated, “the term ‘substance of the opinions to be

         expressed’ relates back to the requirement of disclosure of the material

         relevant to Delaware Rules of Evidence 703 and 705.” 6 Similarly, in State v.

         Patterson,7 the Superior Court opined that any facts or data provided to an

         expert, and relied upon by that expert in formulating an opinion, is “clearly

         discoverable under Sailer.” 8 Accordingly, disclosure must be determined by

         consideration of these Rules of Evidence and the expert’s reasonable

         reliance upon the supplied facts or data.9

    4. Neither Evidence Rule 702 nor Rule 703 is applicable to the question posed.

         Rule 705, however, is applicable in that the rule addresses disclosure of facts

         or data underlying the expert’s opinion. Specifically, Rule 705(a) states:
4
   684 A.2d 1247 (Del. Super. 1995).
5
   Id. at 1251.
6
   Id. (requiring disclosure of all facts and data provided to an expert witness upon which the expert reasonably relied
upon in reaching an expert opinion.).
7
  1997 WL 720719 (Del. Super. Oct. 3, 1997).
8
   Id. at *3.
9
   Id. at *2-3.

                                                           3
           “[t]he expert may in any event be required to disclose the underlying facts or

           data on cross-examination.” Accordingly, Delaware Rule of Evidence 705

           mandates disclosure because the State provided its expert witness, Dr.

           DiMaio, with the memorandum and Dr. DiMaio utilized the memorandum in

           formulating his expert opinion. Consequently, Defendant seeks disclosure

           of the memorandum in advance of trial.

       5. Nevertheless, the State maintains that it has complied with its discovery

           obligations and argues that it is not required to disclose the memorandum to

           Defendant on the grounds that the memorandum is privileged work product.

       6. The Court finds that the State waived any privilege that might have attached

           to the memorandum by providing a copy to the State’s expert witness for its

           expert to utilize in forming an expert opinion.10

       7. Moreover, the Court finds that in order for the disclosure to be meaningful

           and to allow Defendant adequate trial preparation, disclosure must take place

           within the deadlines for expert disclosures as set forth in the Scheduling

           Order. This is consistent with the decisional law.

       8. In State v. Aizupitis, the Superior Court discussed the purpose of discovery

           rules in light of the modern trend of resolving criminal cases promptly, fairly




10
     The State’s reliance on 11th Circuit case law is not persuasive.

                                                             4
            and without “trial by ambush.”11                    The Court explained that Delaware

            procedural rules secure the simple and fair administration of justice during

            criminal proceedings, while the Delaware Rules of Evidence similarly

            ensure the ability to ascertain the truth through just proceedings without

            unjustifiable expense or delay and with promotion and development of the

            law. 12

       9. Therefore, because the deadline for expert disclosure by the State passed on

            October 21, the State’s deadline is hereby extended to November 19, 2014;

            Defendant’s deadline is similarly extended to December 19, 2014; and

            State’s Rebuttal is hereby extended to December 29, 2014.                   No other

            deadlines are changed.

            NOW, THEREFORE, IT IS HEREBY ORDERED on this 17th day of

       November, 2014, Defendant Frank Davenport’s Motion to Compel is

       hereby GRANTED.

            IT IS SO ORDERED.
                                                                             Andrea L. Rocanelli
                                                          __________________________________
                                                             The Honorable Andrea L. Rocanelli




11
     Aizupitis, 1995 WL 1918900, at *2-3 (Del. Super. Nov. 28, 1995).
12
     Aizupitis, 1995 WL 1918900, at *3.

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