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Doe v. Somerset

Superior Court of Delaware

August 2, 2019

JANE and JOHN DOE, guardians ad litem for JOHN DOE 2, a minor, and JANE and JOHN DOE, Plaintiffs,
v.
PAUL SOMERSET, et al. Defendants.

          Submitted: April 8, 2019

         Plaintiffs' Motion for Reconsideration of Commissioner's Order - GRANTED

          Raeann 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.

          OPINION

          STOKES, R.J.

         ORDER

         The 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:

         1. This 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.

         2. 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.

         3. The 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 respected.

         4. In 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.

         After 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.

         5. The Commissioner's decision was released on March 7, 2019 (the "Order").[1] 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.

         6. The Plaintiffs have now moved for reconsideration of the Order.[2] 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 ...


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