IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1907007166
v. Kent County
RICHARD C. FORD,
Defendant.
Submitted: January 17, 2020
Decided: January 27, 2020
ORDER
Upon Defendant’s Motion to Compel

Denied.

Alicia A. Porter, Esquire, Department of Justice, Dover, Delaware; attorney for the

State.

James E. Liguori, Esquire of Liguori & Morris, Dover, Delaware; attorney for
Defendant.

WITHAM, R.J.
State v. Richard C. Ford
I.D. No. 1907007166
January 27, 2020

INTRODUCTION
Presently before the Court is Defendant, Richard C. Ford’s (hereinafter
“Defendant”) Motion to Compel pursuant to Rule 16 of the Superior Court Rules of
Criminal Procedure (hereinafter “Rule 16"). After considering the Defendant’s
Motion and the State’s Response in Opposition, it appears to the Court that:
FACTS AND PROCEDURE .
1. Defendant, who was charged with several sexual offenses, was arrested on
July 12, 2019, and was indicted on October 7, 2019.' Defendant’s attorney wrote a
preservation letter to the State on July 18, 2019, requesting to preserve social media
information of the alleged witnesses and victims.” Defendant’s attorney filed a formal
request for Discovery on October 15, 2019, which also included a request to produce
the social media information.’ The State responded to Discovery but failed to produce
the social media information.*
PARTIES’ CONTENTIONS
2. Defendant argues that the State should have preserved the social media

accounts of the alleged witnesses and victims in this case.” Defendant also claims that

 

" See Defendant’s Motion to Compel (hereinafter “D’s Mot.”) 1.
? Id. § 2.

7 Td. 93.

* Id. 4 5-6

> See Id. § 2.
State v. Richard C. Ford
I.D. No. 1907007166
January 27, 2020

he is entitled to this information under Brady v. Maryland, 373 U.S. 83 (1963) and
U.S. v. Agurns, 427 U.S. 97 (1976).° The State claims that the cases cited by
Defendant do not apply because the State does not (and did not) control the
information Defendant is seeking.’ The State further claims that to access the social
media accounts, it would have to have a probable cause, and Defendant did not
provide the State with any information necessary for that.* The State also claims that
Rule 16 does not apply to this request because, again, the information Defendant is
seeking is not in the State’s control.
STANDARD OF REVIEW

3. The discovery rule that appears to be pertinent to this case is Rule
16(a)(1)©. The rule, entitled “Documents and Tangible Objects,” provides: “Upon
request of the defendant the state shall permit the defendant to inspect and copy or
photograph books, papers, documents, photographs, tangible objects, buildings or
places, or copies or portions thereof, which are within the possession, custody or
control of the state, and which are material to the preparation of the defendant's
defense or are intended for use by the state as evidence in chief at the trial, or were

obtained from or belong to the defendant.”” Furthermore, “[i]f a party fails to comply

 

° Id. 4 6.

’State’s Response to Defendant’s Motion to Compel (hereinafter “State’s Response”) § 2-4.
* Id. J 5-6.

* Super. Ct. Crim. R. 16(a)(1)(D) (emphasis added).

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State v. Richard C. Ford
ID. No. 1907007166
January 27, 2020

with a request the opposing party may move for an order compelling compliance with
the request.””°
DISCUSSION

4. In this case, Defendant is not entitled to the information from the State that
the State does not and did not control. “A prosecutor does not violate the
constitutional duty of disclosure unless his omission is sufficiently significant to
result in the denial of the defendant's right to a fair trial.”'' It is important to note that
a defendant has a constitutional right to access evidence that is subject to disclosure
pursuant to Rule 16.'* Under Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.”'’ The State should also gather and preserve such evidence if it is

readily available to the State."
5. However, both Brady and Rule 16 only apply to the evidence that the State

 

'° Super. Ct. Crim. R. 16(b)(3)(C).
"' Agurns, 427 U.S at 98.

" State v. Hill,2011 WL 2083949 at *4 (Del. Super. Apr. 21, 2011) (citing Deberry v. State,
457 A.2d 744, 751-52 (Del.1983)).

° Brady, 373 U.S. at 87.

'* Schaffer v. State, 2018 WL 1747793 at *2 (Del. Apr. 10, 2018) (citing Deberry v. State,
457 A.2d 744 (Del. 1983), Lolly v. State, 611 A.2d 956 (Del. 1992)).

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State v. Richard C. Ford
I.D. No. 1907007166
January 27, 2020

is in possession or control of.'° Possession and control also covers situations where
the State has ready access to the evidence.'® Accordingly, it follows that the State
must gather, preserve, and disclose the evidence that it has ready access to. However,
the State has no such duty when it comes to the evidence that is “further afield, like
surveillance videos in the hands of private parties or information from a victim's
social media account.”’’ Therefore, the issue becomes whether the State had
possession or control of the evidence Defendant is seeking.

6. In this case, the evidence in question consists of the social media
information that is controlled and serviced by a private agency, as well as private text
messages between the alleged victims. The State was never in possession of this
evidence, and the State does not have ready access to such information. Therefore,
under the principles of Brady and Schaffer, the State is not required to produce this
information to Defendant. Imposing such an obligation on the State would be
impractical, and it would open the door to unreasonable amount of requests from
defendants to produce evidence. Defendant, of course, can seek this information
through other appropriate means within his control. However, if the State possesses
the evidence at any point or has ready access to it, the State should preserve it and

produce it to Defendant.

 

'S See Id. at *3-4.
'6 Td. at *3.

"7 See Id. at *5.
State v. Richard C. Ford
I.D. No. 1907007166
January 27, 2020

7. Defendant’s motion was passed on January 10, 2020 as the State voluntarily
agreed to contact particular people to comply with Defendant’s request. It was
determined by the State’s investigator that no further social media postings will be
provided. This information requested by the defense is not in the State’s possession
and indeed may not even be physically available."

CONCLUSION

For the reasons mentioned above, the Court DENIES Defendant’s Motion to
Compel.

IT IS SO ORDERED.

MMlilor>

Hon. William L. Witham, Jr.
Resident Judge

 

WLW/dmh

oc: Prothonotary

ec: Alicia A. Porter, Esquire
James E. Liguori, Esquire

 

'8 See Exhibit 1, Hearing on Jan. 17, 2020.

6
