           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                          IN AND FOR KENT COUNTY

STATE OF DELAWARE,                   :
                                     :     I.D. No. 1302020005
      v.                             :
                                     :
RONALD WAID,                         :
                                     :
             Defendant.              :


                           Submitted: August 27, 2014
                           Decided: September 9, 2014

                                    ORDER

              Upon the State’s Motion in Limine to Exclude Medical
                  Evidence Obtained in Violation of Privilege.
                                    Granted.


Lindsay Taylor, Esquire, Department of Justice, Dover, Delaware; attorney for the
State of Delaware.

Alexander W. Funk, Esquire and Patrick C. Gallagher, Esquire of Curley & Benton,
LLC, Dover, Delaware; attorneys for Defendant.




WITHAM, R.J.
State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


                                INTRODUCTION
      Before the Court is the State’s motion in limine to exclude counseling records
of a minor victim’s therapy sessions         obtained   by Defendant Ronald Waid
(hereinafter “Defendant”) pursuant to a subpoena, on two alternative grounds; (1)
such information constitutes a violation of the Health Insurance Portability and
Accountability Act (hereinafter “HIPAA”) and (2) such information is protected by
the evidentiary mental health provider privilege, and Defendant has failed to follow
the required procedure necessary to obtain the privileged information.
                          FACTUAL BACKGROUND
      Defendant is charged with five counts of Rape in the First Degree and one
count of Continuous Sexual Abuse of a Child, allegedly committed upon his
biological daughter (hereinafter “Daughter”), who was a minor at the time the alleged
offenses took place. Beginning in approximately 2005 or 2006–after the alleged
offenses had occurred–the Daughter received mental health counseling from Gail
Croft (hereinafter “Croft”), who is employed by Delaware Guidance Services
(hereinafter “Delaware Guidance”). The Daughter’s counseling sessions with Croft
have continued to the present day.
      On February 27, 2014, Croft informed the State that Defendant, via counsel and
one of counsel’s associates, obtained Croft’s records from her sessions with the
Daughter pursuant to a subpoena. As was clarified at the hearing on this motion, the
subpoena was not issued pursuant to a Court order, but by Defendant’s counsel
through the Prothonotary’s office.     The subpoena failed to specifically target

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I.D. No. 1302020005
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information and broadly orders production of “all counseling records relative to [the
daughter], including, but not limited, all notes, reports, documents, opinions and
anything else generated concerning [the daughter’s] treatment with Delaware
Guidance Services.” The State was not aware of the subpoena until Croft informed
them of it.
      Croft informed the State on February 27 that Delaware Guidance complied
with the subpoena (because Delaware Guidance believed that the subpoena was
approved by the Court), and it allowed Defendant’s counsel to review Croft’s
records over the course of two days. During that time, counsel took copious notes of
the records, and copied three specific documents from the records. Again, the State
was not aware of this until Croft brought the issue to the State’s attention.
      On March 24, 2014, the State filed the instant motion in limine to preclude
Defendant from utilizing the records or any information obtained from them. First,
the State contends that pursuant to HIPAA, Defendant was required to attach certain
documents to the subpoena in order to comply with the statute, including a “showing
of satisfactory assurances.” Failure to do so, the State argues, precludes Defendant
from using the records at trial. Second, the State contends that Daughter (through her
guardian) did not waive her mental health provider-patient privilege with regards to
the document. The State further argues that there is a strict procedure that must be
followed, independent of HIPAA, in order for a defendant to obtain privileged
information. The State primarily relies on the Superior Court’s decision in Wood v.



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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


State,1 which summarizes Delaware precedent on this issue.
      A hearing was held on the motion on June 2, 2014, the day on which trial was
scheduled to begin. When asked by the Court, counsel for Defendant stated that no
response to the State’s motion was filed because counsel perceived this as a “trial
issue” that required no briefing. The Court takes umbrage with this position, because
Defendant’s lack of response has prolonged this issue to the eve of trial, when it
could have easily been resolved months earlier if properly briefed.2
      The State’s argument under HIPAA was not directly addressed by Defendant
at the hearing, apart from a contention by Defendant that it was not Defendant’s
burden to make a showing of satisfactory assurances. As to the privilege argument,
Defendant acknowledged that while Wood established a procedure to be followed
when a defendant seeks information protected by the mental health provider privilege,
those requirements have been satisfied pursuant to the Delaware Supreme Court’s
adoption of Wood in Burns v. State.3 Defendant contended that he established an
entitlement to an in camera hearing under Wood and Burns on whether Defendant
can use Daughter’s confidential therapy records at trial. Defendant argues that there
is evidence contained in the records that is “highly probative” for impeachment
purposes, and implied that because Daughter did not raise these allegations until her



      1
          2007 WL 441593 (Del. Super. Feb. 1, 2007).
      2
          It must be noted that this delay has caused this case to be rescheduled as a consequence.
      3
          968 A.2d 1012 (Del. 2009).

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State v. Ronald Waid
I.D. No. 1302020005
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therapy with Croft commenced indicated that there was impeachment value in these
records.4 Finally, Defendant’s counsel contended that he did not follow the Wood
procedure because it was “common law” and thus he was not aware of it.
                                         DISCUSSION
       The pertinent provisions of the federal regulations interpreting HIPAA are
lengthy and fully transcribed in the State’s motion, and will not be rehashed here.
The regulations explain the standard and requirements for when protected HIPAA
information may be disclosed pursuant to an order in a judicial or administrative
proceeding.5        Put simply, a “covered entity” may disclose protected health
information during a judicial proceeding in order to comply with a subpoena
unaccompanied by a court order, if the covered entity receives satisfactory
assurances from the seeker of the information that: (1) reasonable efforts have been
made to give notice of the request to the individual whose health information is
protected; or (2) reasonable efforts have been made to secure a qualified protected
order.6 A showing of satisfactory assurances in either of the two foregoing scenarios
entails a written statement and accompanying documentation demonstrating the good
faith efforts made by the seeker of the information to provide notice or procure a


       4
         However, Defendant fails to provide the Court with any basis or facts supporting its
contention that Daughter can be impeached. Instead, Defense counsel states generally that the
information is needed “for impeachment purposes.”
       5
           See generally 45 C.F.R. § 164.512(e).
       6
           Id.

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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


qualified protective order.7
      There was not enough information adduced from the State’s motion nor at the
hearing for the Court to conclude that, even if Defendant did violate HIPAA by not
providing a showing of satisfactory assurances to Delaware Guidance along with the
subpoena, that such violation precludes Defendant from using that information at
trial. Accordingly, the Court shall not address this argument further.
      Turning now to the State’s second argument, under the Delaware Rules of
Evidence, any patient (or the patient’s guardian) who received care from a mental
health provider may claim a privilege to prevent disclosure of any confidential
communication made by the patient to the provider for the purpose diagnosis or
treatment.8 The Delaware Supreme Court has held that subpoenas issued pursuant
to Rule 17 of the Delaware Rules of Criminal Procedure cannot be used as a pre-trial
discovery device to obtain prior statements of trial witnesses.9
      In Wood v. State, the Superior Court analyzed Delaware precedent on the use
of Rule 17 subpoenas to obtain information protected by the mental health provider
privilege. Wood involved a motion to quash subpoenas that had not yet been issued
pertaining to when the Court must balance the competing equities of the defendant’s
confrontation rights and right to full disclosure of exculpatory information, on the one



      7
          45 C.F.R. § 164.512(e)(1)(iii)-(iv).
      8
          D.R.E. 503(b)-(c).
      9
          McBride v. State, 477 A.2d 174, 180 (Del. 1984); see also Del. Super. Ct. Crim. R. 17(c).

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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


hand, against the victim’s right to privacy on the other.10
      To obtain such information pursuant to a subpoena, the moving party must
show: (1) that the documents are evidentiary and relevant; (2) they are not otherwise
procurable in advance of trial by the exercise of due diligence; (3) the party cannot
properly prepare for trial, and the failure to obtain such inspection may tend to
unreasonably delay the trial; and (4) the application for a subpoena was made in good
faith and not intended as a general fishing expedition.11 Upon this showing, the Court
may issue a subpoena for in camera review of the records so that the Court may
determine, subject to its discretion, what information is relevant.12 The in camera
review ensures that the victim’s privacy and confidentiality rights are protected, while
justifying breach of those rights only when necessary to protect the defendant’s right
of confrontation.13
      Wood was adopted by the Delaware Supreme Court in Burns. The Supreme
Court stated that in order to receive an in camera hearing, the defendant must: (1)
identify precisely the records being sought, and assert a compelling basis for the
request; (2) attempt to procure the consent of the victim before for release of the
records before resorting to a subpoena; and (3) demonstrate with specificity that the


      10
           Wood, 2007 WL 441953, at *6.
      11
           Id. at *5 (citations omitted).
      12
           Id. at *6.
      13
           Id.

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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


information is relevant and material to the defense.14 As to the third prong, the Burns
Court explained that the Defendant need only make a “plausible showing” that the
information is relevant and material, rather than specifically establishing those
requirements.15 Even if a plausible showing is made, the defendant must still
specifically establish what kinds and categories of records are being sought, must
show a compelling basis for the request, and must additionally satisfy the trial court
that the defendant “is not embarking on a ‘fishing expedition.’”16 The Burns Court
noted that the trial court may, when necessary, sanction defendants who abuse this
process.17
      Even assuming arguendo that Defendant can make a plausible showing of
relevancy and materiality under Wood and Burns, the Court concludes that Defendant
has abused the process established by that precedent, and that precluding Defendant
from using or referencing any of the Daughter’s counseling records or information
contained therein is the most appropriate sanction. The Court cannot accept the
contentions of Defendant’s counsel that he was not aware of the foregoing process
simply because it is contained in common law rather than a rule or statute. Burns is
unequivocally clear that failure to follow this procedure may result in sanctions. As


      14
           Burns, 968 A.2d at 1024 (citing Wood, 2007 WL 441953, at *5-6).
      15
           Id. at 1025-26.
      16
           Id. (citing Wood, 2007 WL 441953, at *5).
      17
           Id. at 1026.

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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


put by the State during the hearing, Defendant has essentially side-stepped the
requirements of Wood and Burns by impermissibly obtaining Victim’s records
without approval of the Court, knowledge by the State, and most importantly without
first attempting to obtain the consent of Daughter.
      Indications by Defendant’s counsel at the hearing–such as his contention that
he anticipated filing a motion to compel had Delaware Guidance not turned over the
documents–convinces the Court that Defendant’s obtaining of the records amounted
to nothing more than a fishing expedition. He now wishes to boot-strap his way to
using the information already received. Further, merely stating that the records are
“highly probative” for impeachment purposes does not provide a compelling basis for
obtaining the records. Put simply, Defendant has impermissibly failed to comply with
the requirements of Wood and Burns, and has failed to establish that he is entitled to
an in camera proceeding on the admissibility of the documents.
      The purpose of these procedures is to safeguard the Daughter’s rights of
privacy and confidentiality against impermissible fishing expeditions; those rights
have been violated in this case. Sanctions are necessary, and the only sanction that
is appropriate is excluding the records and precluding any reference thereto.
      A final observation must be made. The fact that Delaware Guidance willingly
turned over the records does not amount to a waiver on the party of the State. The
privilege is the Victim’s alone to waive. That therapists, unlearned in the ways of the
law, unwittingly turned over protected documents pursuant to a mistaken belief that
they were obligated to do so does not permit Defendant to use those documents at

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State v. Ronald Waid
I.D. No. 1302020005
September 9, 2014


trial.
                                  CONCLUSION
         Based on the foregoing, the State’s motion in limine is GRANTED. Defendant
is not permitted to admit or otherwise reference Daughter’s counseling records at
trial.
         IT IS SO ORDERED.



                                       /s/ William L. Witham, Jr.
                                       Resident Judge

WLW/dmh
oc: Prothonotary
xc: Lindsay Taylor, Esquire
    Alexander W. Funk, Esquire
    Patrick C. Gallagher,Esquire




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