Submitted: August 27, 2014
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.
William L. Witham, Jr. Resident Judge
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.
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, 20 14, Cr oft in for me d 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 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. State,  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.
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. 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 therapy with Croft ...