Date Submitted: October 26, 2012
On Plaintiffs' Revised Motion to Compel Production of Requested Documents.
On Defendant Boy Scouts of America's Motion for Protective Order in response to Plaintiffs' Revised Motion to Compel Production of Requested Documents.
Raeann Warner, Esq., Jacobs & Crumplar, P.A. Wilmington, Delaware. Attorney for Plaintiff.
Mark L. Reardon, Esq. Colleen Shields, Esq., Penelope B. O'Connell, Esq., Peter S. Murphy, Esq., Brian D. Tome, Esq. Eckert Seamans Cherin & Mellott, LLC. Wilmington, Delaware. Attorneys for Boy Scouts of America and DelMarVa Council, Inc. Boy Scouts of America.
The motions before this Court pertain to two cases arising from the Child Victim's Act of 2007. In each case, Plaintiffs seek recovery for alleged sexual abuse by scoutmasters who volunteered in the Boy Scouts of America ("BSA") organization. Plaintiff John Doe 6 ("Doe 6") claims that Defendant Roy Gerhard ("Gerhard") sexually abused him in or about 1968. Plaintiff John Doe 7 ("Doe 7") claims that he was abused by Defendant Arthur Sinnott ("Sinnott") during 1970 through 1973. The Court has reviewed the parties' submissions, including supplemental memoranda,  and heard oral argument. For the following reasons, Plaintiff's motion to compel is GRANTED, in part, and DENIED in part and Defendants' Motion for Protective Order is GRANTED, in part, and DENIED in part.
Plaintiffs seek to compel BSA's production of all "Ineligible Volunteer Files and Perversion Files" ("Files"), from at least 1948 through 1973, in order to support their claim that BSA had specialized knowledge of the sexual abuse occurring within the organization prior to the Plaintiffs' alleged abuse. Plaintiffs' expert, Gary Schoener, plans to testify about the special knowledge that BSA had and whether such knowledge gave rise to a duty to prevent Plaintiffs' abuse. Plaintiffs requested all Files in BSA's possession, but BSA has directly provided only the Files relating to Sinnott and Gerhard. Plaintiffs have offered to accept Files with redacted victims' names; however, Plaintiffs oppose the redaction of the names of the individuals who reported the misconduct ("reporting individuals") because Plaintiffs wish to determine their roles or positions in the organization.
BSA objects to Plaintiffs' request and moves, in response, for a protective order from this Court. BSA argues that production of the unredacted Files would be unduly burdensome because of the volume of files involved. BSA also insists that producing the unredacted Files would "invade the right of privacy of third parties who are strangers to the underlying cases" and cause a chilling effect on the reporting system. Plaintiffs assert that the reporting individuals are not subject to the same right of privacy as the victims. BSA contends that Plaintiffs will not face hardship if the Court does not order production of the Files because Plaintiffs have already had access to many Files, including the Files concerning Gerhard and Sinnott. Furthermore, BSA has stated that
[i]n these cases, the BSA will stipulate that the organization was on notice that some individual who seek involvement with youth activities, including the scouting programs, sometimes sexually abused children.
Standard of Review
In reviewing Plaintiffs' motion to compel and BSA's motion for protective order, the Court is guided by Delaware Superior Court Rules 26(b) and 26(c). Rule 26(b) grants discretion to the trial court to regulate discovery. Although the scope of discovery is broad,  the Court shall limit the frequency or extent of use of discovery methods in certain circumstances, such as when the ...