IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANNETTE R. WHITE and KORIE D.
HENRY, SR., Individually and as

Personal Representatives of the Estate
of KORIE D. HENRY, JR., deceased,

Plaintiffs,_
V'-" C.A. No. 09€-01-183 CLS
RIBBONS & BOWS DAYCARE, INC.,

Defendant.

\}§/€\2\2\2\2\2\2§/\_/§/

.,GLD_E=K
On this 12th day of August, 2()16, after having heard oral argument on July
12, 2016, and upon further consideration of Defendant Ribbons & Bows Daycare,
Inc.’s ("Defendant") Motion to Compel and the State of Delaware’s ("State")
Response thereto, the Court finds as follow's:

- Plaintiffs, Annette R. White and Korie  Henry, Sr., ("Plaintiffs") filed this
survival and wrongful death action against Defendant on January 22, 2009, arising
out of the death of their child while at Defendant’s daycare facility on September
24, 2007. Because the Medical Examiner’s Office determined that the manner of
death was homicide, the matter was turned over to the Dcpartment of Justice. In
conjunction therewith, the Wilmington Police Dcpartment ("WPD") initiated a
criminal investigation, which, at present, is listed as "suspended" by the WPD_

but not closed. In December, 2015, the Office of the Attorney General ("AG’s

Office") released the Medical Examiner’s autopsy report and toxicology results to
the Parties, despite express statutory protection of such records.l

On May 9, 2016, Defendant filed the instant motion, seeking to compel the
AG’s Office to produce "any and all records regarding the homicide investigation
involving the death of Korie Henry, Jr."z Defendant argues that, pursuant to the
Court’s liberal civil discovery rules, it is entitled to the State’s criminal file,
because the governmental privilege does not apply where the information being
withheld is material and essential to the civil claims and defenses, there is no
ongoing investigation and the statute of limitations has run on all but a homicide
charge, it will suffer unjust prejudice and great hardship in defending this action,

and this action risks proceeding upon a factual and/or legal fiction perhaps created

by Plaintiffs.

:-¢-_- __ _-__.--_ _x

1 See 29 Del. C. § 4707(e) ("[T]he next of kin of the deceased shall receive a copy of the
postmortem examination report, the autopsy report and the laboratory reports, unless there shall
be a criminal prosecution pending in which case no such reports shall be released until the
criminal prosecution shall have been finally concluded.").

2 Defendant specifically requests, inter alia, (l) copies of all reports, memorandum, and/or notes
prepared in the investigation of the referenced homicide, (2) copies of all written statements,
confessions or admissions of any suspect, defendant or any co-defendant, as well as the
substance of any oral statements, including testimony before a grand jury, (3) notes, records, and
reports of all forensic or scientific tests conducted by the police, medical examiner, FBI, DEA,
prosecution, or experts retained for these purposes, including copies of any underlying data used
in the tests, (4) copies of notes, records, and reports of any physical or mental examinations of
alleged victims by a physician or psychologist, (5) a listing and opportunity to inspect any
physical evidence seized from any suspect or defendant or collected by the State in its
investigation, (6) copies of all application f`or, returns from, and affidavits in support of all search
warrants, whether executed or unexecuted, (7) copies of all arrest warrants, including supporting
affidavits, and information pertaining to any warrantless arrests, and (8) the identity of any and
all informants and past or present witnesses.

 

The State argues that Defendant has failed to overcome the well-established
common law governmental privilege that safeguards the public’s interest in
maintaining the confidentiality of criminal investigatory files, because the
investigation is ongoing, disclosure of the file would prejudice the investigation
and any future prosecution, and the State is not a party. According to the AG’s
Office, because the child died from an excessive overdose of diphenhydramine,
there is criminal liability for his death and, while the case is "unsolved," meaning
the actual perpetrator has not yet been confirmed, its investigation is still open
pending a murder charge.?’ The State also argues that the scope of Defendant’s
subpoena is too broad-a "fishing expedition"_and asserts that Defendant ignored
its previous intimation that a narrower scope may avoid a resort to the courts.

On a motion to compel the production of documents, the Court, in its
discretion, determines whether the discovery sought is reasonably calculated to
lead to admissible, non-privileged evidence.4 "A party asserting a privilege bears
the burden of establishing that the requested documents or communications are in

fact, and as a matter of law, protected by privilege."$ The burden then shifts to the

,,'_.=-_=__~_= __ --,c

3 See ll Del. C. § 205(a) ("A prosecution for murder or any class A felony . . . may be
commenced at any time."); ll Del. C. §205(b)(l) ("A prosecution for any [other] felony . . .
must be commenced within 5 years after it is committed.").

4; Commonwealth Land Title Ins. C0. v. Funk, 2015 WL 3863192, at *2 (Del. Super. June l7,
20l5) (citing Super. Ct. Civ. R. 26(b)(l)).

5 Ia'. (citing Moyer v. Moyer, 602 A.2d 68, 72 (Del. 1992)).

moving party, who must affirmatively show that good cause exists for production.6
As applied to a claim of privilege, the non-privileged party must show that the
evidence sought is material to his or her claim or defense and, then, that it cannot
be obtained from any other source.7 Whether good cause exists should be
determined by the facts and circumstances, on a case by case basis.g

A govemmental privilege for material obtained in the furtherance of a
criminal investigation-also referred to as the law enforcement or prosecutorial
privilege-exists in Delaware at common law.9 In support of this privilege,
Delaware courts point to the public interest in justice and effective criminal
prosecutions by the State, which generally depend on the confidentiality of
criminal investigations to function effectively.l° However, this Court has

consistently held that, despite the public interest, this governmental privilege is not

l

absolute.l Therefore, where a non-privileged party seeking disclosure of a

criminal investigatory file shows that his or her interest in acquiring certain parts of

6 Braa’y v. Suh, 2009 WL 63l2l8l, at *2 (Del. Super. July 8, 2009) (citing Papen v. Suburban
Propane Gas Corp., 229 A.2d 567, 571 (Del. Super. l967)).

;Beckett v. Trice, 1994 WL 3l9l7l, at *4 (Del. Super. June 6, 1994).

Id.

9 Grijj‘in v. Sigma Alpha Mu Fraternz'ty, 20ll WL 2120064, at *2 (Del. Super. Apr. 26, 2011)
(citing Brady v. Suh, 2009 WL 63l2l8l, at *3 (Del. Super. July 8, 2009)); I/Villiams v.
Alexander, 1999 WL 743082, at *l (Del. Super. June 29, l999) (citing Beckett, 1994 WL
3l9l7l; State v. Brown, 36 A. 458, 463-64 (Del. l996)).

‘° Grgj"m, 2011 wL 2120064, ar *2; vr/zlzzams, 1999 wL 743032, at *2; aaa Brawa, 36 A. ar 463-
64 ("Such communications [between witnesses and the prosecuting officer] are regarded as
secrets of State, or matters the disclosure of which would be prejudicial to the public interests.").
“ n/zllzams, 1999 wL 743032, ar *2 (citing Guy v_ Jadzazal Namzaa¢zag comm 'n, 659 A.2d 777,
783 (Del. Super. l995)). ‘

 

the file outweighs the public interest in protecting the confidentiality of the file, the
privilege may be overcome.lz

ln Willz`ams v. Alexana'er, after weighing the competing interests of the State
and the parties seeking the State Fire Marshal’s investigatory file in conjunction
with a fire classified as a possible arsori, this Court ordered the disclosure of all
material relating to the factual investigation of the fire, but not any information
relating to interviews with non-parties, despite the fact that the statute of
limitations for arson had not yet expired.“ In so holding, this Court relied on a
another court’s examination of the governmental privilege and finding that courts
consistently refuse to require disclosure of statements of third party witnesses, but
require disclosure of those portions of the files consisting of factual investigations
and, at times, conclusions made as to causation.M

ln Griffz`n v. Sz`gma Alpha Mu, this Court ordered the City of Newark to
disclose the parts of a closed criminal file pertaining to the factual investigation of
the death of college freshman during a fraternity initiatiori, where the criminal
charges arising from the police investigation had all been resolved.'$ ln making its
decision, the Court noted that the investigation was complete, the parties were not

actual or potential defendants in the criminal proceeding, and the information

13

ld.
"‘ 1a (quoiing cooney v. sun shzpbzdg_ & Dryd@ck c@., 288 F. supp. 703, 716 (E.D. Pa. 1968))§.:
‘5 2011 wL 2120064, ar *2-3.

sought was factual and not available from other sources due to the witnesses’
lapses in memory, which was evident from the Court’s review of certain deposition
testimony. 16

At the outset, consideration must be given to the fact that the State is not a
party to this litigation. Thus, while the modern approach to discovery under the
Court’s current civil rules is often described as broad and liberal, Defendant has no
per se right to the materials it seeks. Such point is bolstered by the fact that
Delaware’s Freedom of Information Act expressly excludes from "public" files
"[i]nvestigatory files compiled for civil or criminal law-enforcement purposes
including pending investigative files."" lt is against this backdrop that the Court
will consider Defendant’s request.

Where, as here, the criminal investigation remains open and involves
possible murder charges for the death of an infant who had been in the care of the
Parties to this civil litigation, the Court thinks it improvident under the
circumstances to require the AG’s Office to open the doors to its criminal file at
this juncture, especially where it has already shared with the Parties the Medical
Examiner’s autopsy report and toxicology results. While the Court’s discovery
rules may be liberal, Defendant has neither demonstrated that its interests yet

outweigh the public’s and the State’s nor made any showing that it cannot acquire

lzld.
" 291)@1. C. § ioooz(d)(z)i

  

what it is seeking elsewhere in order to justify overcoming the board protection
afforded by Delaware’s governmental privilege to criminal investigatory files.lg

Accordingly, for the foregoing reasons and for the time being, Defendant’s

Motion to Compel is DENIED.

IT IS SO ORDERED.

_;/~@L‘L/IQY,Q §_Q_@TT_ __ _ _ __
`_The Honorable Calvin L. Scott, Jr."

co_f§;`§ Prothonotary

18 To be sure, Defendant has neither identified what it is that it seeks nor claimed any actual
prejudice beyond a theoretical, nay, speculative concern that Plaintiffs will benefit in this action
from their inaction in the criminal investigation. Of course, this Court’s discovery rules provide
Defendant with an arsenal of tools to discover any relevant, non-privileged information in
Plaintiffs’ possession. See generally Super. Ct. Civ. R. 26.

 

7

