JANE and JOHN DOE, guardians ad litem for JOHN DOE 2, a minor, and JANE and JOHN DOE, Plaintiffs,
PAUL SOMERSET, et al. Defendants.
Submitted: April 8, 2019
Motion for Reconsideration of Commissioner's Order -
Warner, Esquire and Thomas C. Crumplar, Esquire, Jacobs &
Crumplar, P.A., Attorneys for Plaintiffs.
Jessica L. Reno, Esquire, Mark L. Reardon, Esquire, and Brian
D. Ahern, Esquire, Eckert Seamans Cherin & Mallot,
Wilmington, Delaware Attorneys for Plaintiffs.
Court having duly considered the Motion for Reconsideration
of Commissioner's Order filed by John and Jane Doe,
individually and as guardians ad litem of John Doe
2, a minor (collectively, the "Defendants")
pursuant to Superior Court Civil Rule 132 (a) (3) and the
response thereto filed by Paul, Daniel, and Jason Somerset
(collectively, the "Plaintiffs"), IT APPEARS THAT:
personal injury action was filed by the parents of a minor on
their behalf and on behalf of their child against Paul
Somerset, Dan Somerset, and Jason Somerset
("Jason"). Jason is a minor and the Somersets'
adopted son. The complaint alleges that Jason sexually
assaulted the Plaintiffs' child.
Felony sex charges are currently pending against Jason in
Family Court throughout several competency evaluations Jason
has consistently been deemed incompetent to participate in
his own defense. That case currently remains pending.
progress of this case has been hindered due to the parallel
criminal proceeding. Defendants' request for a continued
stay was denied by this Court by order dated January 26,
2018. Going forward, discovery directed to Jason was
prohibited in light of the criminal proceeding, and it was
made clear that his Fifth Amendment rights were to be
response to the Plaintiffs' request for production of
documents, the Defendants agreed to produce certain
educational and medical documents (including
neuropsychological evaluations, mental competency
evaluations, and therapy notes) subject to an
"attorneys' eyes only" designation.
review of those documents, the Plaintiffs moved for a legal
determination that the documents should not be deemed
"attorneys' eyes only" and for an order
compelling production of the documents without that
designation. The Defendants opposed this motion and moved for
a protective order regarding the documents. As grounds for
their opposition, the Defendants expressed concern that,
given the pendency of the criminal case against him,
Jason's Fifth Amendment rights would still be jeopardized
notwithstanding the limitation of the discovery.
Commissioner's decision was released on March 7, 2019
(the "Order"). The Commissioner conducted an in
camera review of all the documents and determined that,
going forward, only 59 of those documents would remain
subject to the "attorneys' eyes only"
designation. The Order stated that continued protection of
the selected documents was necessary as they "contain
statements or information which incriminate Jason or which
may lead to information which may incriminate him." Any
documents not selected were deemed acceptable for review by
the Plaintiffs and for use in depositions or other discovery.
Plaintiffs have now moved for reconsideration of the
Order. They assert that the determination that
consideration of Jason's Fifth Amendment rights warrants
continued protection of the 59 selected documents is contrary
to law and should be changed. Specifically, the Plaintiffs
argue that the document requests were directed to Paul and
Daniel Somerset and that they cannot assert the Fifth
Amendment privilege on Jason's behalf. The Plaintiffs
also contend that the documents are not protected under the
Fifth Amendment because they are business records of schools
and doctors and their creation involved no ...