Opinion
File No. CS19-01007 Petition No. 19-05491
11-25-2019
R------ H---------, Petitioner, v. M------- H---------, Respondent.
ORDER
MOTION FOR THIRD PARTY DISCOVERY In the Interests Of:
K.C.H (DOB: )
R.I.H (DOB: )
ORDER
Currently before the Court is a Motion for Third Party Discovery filed by M------- H--------- (hereinafter "Mother") on June 25, 2019. The Motion requests the Court enter an Order requiring the Children's Advocacy Center of Delaware Inc., and/or the Department of Justice and/or Detective Mark Dougherty, with the Delaware State Police, Troop 4, to transfer a copy of CAC interviews of the above-captioned children, which took place on June 6, 2019.
The Court acknowledges that Mother only requested the release of the CAC interview tapes from June 6, 2019 in her Motion. However, the above-captioned children were interviewed on August 28, 2019 as well. Thus, the Court will include the CAC interview tapes from both June 6, 2019 and August 28, 2019 within this Order.
BACKGROUND
The Court takes judicial notice of the entire record in this matter. In the interest of judicial economy, only the background specifically relevant to the pending Motion is discussed herein.
This action concerns the parties' two minor children, K.C.H (DOB: ) and R.I.H (DOB: ).
On February 28, 2019, R------ H--------- ("hereinafter "Father") filed a Petition for Custody against Mother. Mother filed an Answer and Counterclaim to Father's Petition on May 7, 2019. Father filed an Answer to Mother's Counterclaim on May 17, 2019.
Mother filed a Petition for Protection from Abuse against Father on January 10, 2019. On January 25, 2019, a Commissioner of this Court entered a one (1) year PFA Order in favor of Mother. Within this Order, both parties were to share residential placement of the minor children, relocating in and out of the marital home every three (3) to four (4) days. Mother was to have final decision-making authority regarding K.C.H. and R.I.H. On February 15, 2019, Mother filed a Motion for Contempt of the underlying PFA. On June 28, 2019, a Commissioner of this Court entered a Civil Disposition, finding that Father was in contempt of the May 17, 2019, PFA.
On May 24, 2019, Mother filed a Petition for Order of Protection from Abuse against Father on behalf of the parties' minor children. Therein, Mother alleged that the minor children told her that Father had dragged, pinched, punched, and painfully squeezed them, leading to visible marks and injury. Mother stated that the minor children informed her that Father told them to "not tell mom" about these incidents. On May 24, 2019, a Commissioner of this Court entered a Temporary Ex Parte Order. The children spoke with their respective counselors, as well as Virginia Robinson, a DFS worker. K.C.H. and R.I.H. were interviewed at the Children's Advocacy Center of Delaware, Inc. (hereinafter "CAC") on June 6, 2019. Mother, by and through her attorney, Thomas E. Gay, Esquire, issued a subpoena duces tecum to the CAC requiring the CAC to bring copies of the minor children's interviews to the rescheduled PFA Hearing on June 13, 2019. The CAC, by and through David G. Culley, Esquire, sent a letter to Thomas E. Gay, Esquire, on June 12, 2019, indicating that the CAC would not provide copies of the children's recorded interviews. Mr. Culley advised Mr. Gay to contact Mark Dougherty at Troop 4 to request copies of the children's recorded interviews. On June 13, 2019, Mother's PFA Petition was dismissed without prejudice by a Commissioner of this Court.
On June 14, 2019, the Court entered an Interim Stipulation, Agreement, and Order. Under the Order, Father was to have supervised visits with the minor children until the Division of Family Services (hereinafter "DFS") completed their investigation. If DFS completed their investigation without a finding of abuse and/or recommended that unsupervised contact resume, the parties were to revert back to the shared placement schedule stipulated within Mother's first PFA Order against Father. Additionally, the parties agreed to psychological/custody evaluations with Dr. Joseph Zingaro. In the event that Dr. Zingaro does not reach a finding that physical abuse occurred, or he finds that the children are not in a real and present danger of physical abuse, then the parties agreed to go back to the shared placement schedule of contact reflected in Mother's first PFA Order.
Temporary Interim Stipulation, Agreement and Order Regarding Custody and Visitation, H--------- v . H--------- (Del. Fam. Ct. 2019).
Id.
On July 2, 2019, the State of Delaware, by and through its counsel, Deputy Attorney General, Karin M. Volker, Esquire, filed an Answer to Mother's Motion for Third Party Discovery. Therein, the State avers that the Delaware State Police are not a party to the present custody action. Further, the State argues that any documentation, interviews, or the like sought would likely be protected by governmental privilege. Additionally, Delaware State Trooper Mark Dougherty did not independently interview R.I.H. The State argues that disseminating any information relating to the children's interviews with CAC would be in violation of 11 Del. C. ch. 85 and 11 Del. C. § 9402. The State argues that Mother has not alleged significant materiality to overcome the public policy of protecting the confidentiality of witness statements in a criminal investigation. The State did, however, agree to an in camera review by the Court of the CAC interview without dissemination to the parties.
Answer to Motion for Third Party Discovery, H--------- v . H--------- (Del. Fam. Ct. 2019).
Id.
Id.
Id.
On July 5, 2019, the Division of Family Services, by and through Deputy Attorney General, Donna Thompson, Esquire, filed their Response to Mother's Motion for Third Party Discovery. Therein, DFS avers that they are not in possession of the recording of the CAC interviews. Further, DFS defers to the Delaware State Police and the Department of Justice regarding whether CAC interviews should be released to Mother.
DFS Response to Respondent's Motion for Third-Party Discovery, H--------- v . H--------- (Del. Fam. Ct. 2019).
Id.
On July 7, 2019, Father, by and through his attorney, Theresa M. Hayes, Esquire, filed his Response to Mother's Motion for Third Party Discovery. Therein, Father requests that the Court grant Mother's Motion for Third Party Discovery.
On July 10, 2019, CAC, by and through David G. Culley, Esquire, filed their Response to Mother's Motion. Therein, CAC stated that they must comply with the confidentiality provisions of 16 Del. C. § 909(c). Additionally, CAC stated that they must adhere to the statutory provisions referenced within the Memorandum of Understanding (hereinafter "MOU"). CAC avers that the subpoena they received did not satisfy any statutory provisions and that, until the express criteria of the statute were met, CAC could not comply with the subpoena. Finally, CAC informed Mr. Gay that upon completion of the forensic interviews, any audio or video recordings of the interviews were delivered to the Delaware State Police as evidence in its own ongoing investigation, in accordance with provisions of the MOU. CAC ultimately requested that the Court deny Mother's Motion. In the alternative, CAC requests the Court enter a protective Order which quashes the subpoena as it is more appropriately directed to the Delaware State Police. If the Court deems more appropriate, the CAC alternatively requests that the Court enter a protective Order that quashes the subpoena until Mother has fully complied with the provisions of 16 Del. C. § 909(c) and that each member of the disciplinary team has consented to the production of any materials sought by the subpoena. Finally, in the event that the Court deems it appropriate for CAC to comply with the subpoena, CAC requests the Court first conduct an in camera review of the materials.
The CAC has entered into a Memorandum of Understanding ("MOU") with the Division of Family Services, the Department of Justice, and Delaware's Police agencies. The MOU was developed and adopted pursuant to 16 Del. C. § 901(3); § 902(13); and, § 906(a), (b), and (e).
On August 23, 2019, the Delaware Department of Justice (hereinafter "DDOJ"), by and through its attorney, Deputy Attorney General, Ryan P. Connell, Esquire, filed its Response to Mother's Motion. The DDOJ requested the Court enter an Order denying Mother's Motion. Therein, the DDOJ avers they are not a party to the matter before the Court. Additionally, the DDOJ has not interviewed the children, nor does it possess responsive documents, materials or interviews. To the extent the DDOJ has these materials, they would be protected by prosecutorial or governmental privilege. Additionally, the DDOJ argues that Mother's Motion appears to be an attempt to circumvent the subpoena process allowed for under Del. Fam. Ct. Civ. R. 45. Finally, the DDOJ states that Mother has not alleged significant materiality to overcome the public policy of protecting the confidentiality of witness statements in a criminal investigation. In the alternative, if the Court so orders, the DDOJ requests the Court conduct an in camera review of the CAC interviews and limit the dissemination of the materials through a protective Order.
On September 30, 2019, the Court held an Oral Argument concerning Mother's Motion for Third Party Discovery. Mother argued that the interview tapes from CAC were necessary because they reflect allegations of abuse from Father. Father argued that the tapes should be provided because they will show that the minor children have been coached by Mother, and that no abuse from Father actually occurred. David G. Culley, Esquire, represented CAC. The CAC maintained their position that they no longer own the interview tapes, but rather the Delaware State Police own the tapes. Additionally, CAC did not want to risk violating confidentiality provisions, nor the integrity of ongoing or potential criminal investigations. Ryan P. Connell, Esquire, represented the Division of Family Services, the Delaware State Police ("DSP"), and the DDOJ. DFS held the position that they do not have the interview tapes. The Delaware State Police and DDOJ maintained that neither want to "become the clearinghouse of information." Mr. Connell stated that the interview tapes were not intended to become tools of civil litigation and that the tapes are protected by governmental privilege. All parties seemed to agree that if the tapes had to be presented, they would want a level of confidentiality maintained in the dissemination of the tapes. More specifically, the parties indicated that they would be agreeable to an in camera review of the CAC interview tapes.
Although the CAC maintained that they no longer owned the interview tapes, they did admit to maintaining a digital copy of the aforementioned interview tapes.
On October 10. 2019, this Court issued an Order indicating that resolution of the pending discovery dispute required an in camera review of the CAC interviews of the above-captioned children, which took place on June 6, 2019. DSP sent the CAC interview tapes from both June 6, 2019 and August 28, 2019.
In the June 6, 2019 interview tapes, R.I.H. indicated that Father dragged her up carpeted stairs, which "messed up" her eye. Further, she stated that Father has punched her in the chest with both of his hands and has pinched her lips. In addition, R.I.H. stated that Father has grabbed K.C.H.'s shoulders. K.C.H. stated that Father pinches her lips and squeezes her shoulders. K.C.H. said that her lips hurt when Father pinches them and sometimes her shoulders bleed when Father squeezes them. She also stated that Father has hit R.I.H. multiple times and that as a result of Father dragging R.I.H. up the stairs, R.I.H. suffered carpet burn on her back.
In the August 28, 2019 interview tapes, R.I.H. stated that Father has dragged her up the stairs three times. She stated that Father has also thrown her several times. K.C.H. stated that Father abandoned her a couple of months ago. She also stated that Father has spanked her multiple times and used to punch her in the chest. Further, K.C.H. stated that Father often calls her bad names.
DISCUSSION
Pursuant to Rule 26 of the Delaware Family Court Rules of Civil Procedure, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery. The scope of discovery is broad, as relevancy, not admissibility, is the crucial test in determining what documents and materials are discoverable between the parties.
Del. Fam. Ct. Civ. R. 26(g)(1)
Newborn v . Christiana Psychiatric Services , 2016 WL 7015715, at *4 (Del. Super. Ct. 2016)
Rule 45 of the Delaware Family Court Rules of Civil Procedure governs motions to quash subpoenas on the non-parties to the civil action. Pursuant to this Rule, on a timely motion, the Court shall quash or modify the subpoena if it requires disclosure of privileged or other protected matter and no exception or waiver applies.
Del. Fam. Ct. Civ. R. 45(h)(3)(A)
Id.
Under either Rule, where a party or non-party asserts the requested materials are privileged, the defending party carries the burden of establishing the applicability of the privilege. If the defending party meets this burden, the burden then shifts to the requesting party. To overcome this privilege, the requesting party must show good cause for the materials' production. A showing of good cause must reveal the materials' materiality to a claim or defense, and the party's inability to obtain the information from another, non-privileged source. A determination is made on a case-by-case basis.
Newborn v . Christiana Psychiatric Services , 2016 WL 7015715, at *4 (Del. Super. Ct. 2016)
Id.
I. Prosecutorial Privilege
The Delaware State Police and DDOJ contend that the CAC interviews in question are protected by prosecutorial privilege. Prosecutorial privilege exists in Delaware at common law. While the Attorney General has a privilege over the materials it collects for criminal investigations, the privilege is not absolute, but qualified. The State has a strong interest in protecting the confidentiality of communications it receives during criminal investigations. The prosecutorial privilege is traditionally upheld because disclosure of confidential communications "would be prejudicial to the public interest" and the State's ability to conduct productive criminal investigations.
Griffin v . Sigma Alpha Mu Fraternity , 2011 WL 2120064, at *2 (Del. Super. Apr. 26, 2011) (citing Brady v . Suh , 2009 WL 6312181, at *3 (Del. Super. July 8, 2009)); Williams v . Alexander , 1999 WL 743082, at *1 (Del. Super. June 29, 1999) (citing Beckett, 1994 WL 319171; State v . Brown , 36 A. 458, 463-64 (Del. 1996)).
Brady v . Suh , 2009 WL 6312181, at *3 (Del. Super. Ct. 2009)
Id.
As a non-privileged party, Mother carries the burden of overcoming the State's privilege. The Court finds that Mother has met this burden because there is a substantial need for the CAC interview tapes, and the information within the tapes cannot be obtained in a less intrusive manner. The video recordings of the children's CAC interview is important because they relate to alleged child abuse by Father. Domestic violence is a critical component when making a custody determination pursuant to the best interests of the minor children. The Court recognizes that the information contained in these tapes could be obtained through the testimony of the minor children. However, according to the MOU, interviews by multiple interviewers "could be detrimental to children and can create issues for successful civil and criminal case dispositions." Additionally, the taped interviews are more reliable for they were taken closer to the time of the alleged abuse from Father. Forcing the children to testify about their alleged abuse months after the incident took place may not be as reliable and would carry the risk of re-traumatizing or re-victimizing K.C.H. and R.I.H. These risks are completely adverse to the MOU's stated purpose.
Child Protection Accountability Commission, Memorandum of Understanding for the Multidisciplinary Response to Child Abuse and Neglect, 19 (2017)
Thus, for the foregoing reasons, prosecutorial privilege does not bar the dissemination of the CAC interview tapes.
II. Governmental Privilege
Alternatively, the Delaware State Police and DDOJ contend that the CAC interviews in question are protected by governmental privilege. Rule 508 of the Delaware Uniform Rules of Evidence governs governmental privilege. "The scope of governmental privilege is in the context of a civil litigant's asserted need to obtain information contained in a state agency's investigative file used in preparation of possible criminal prosecution of relevant parties or non-parties to the civil action." Such information is protected on public policy grounds. Communications between witnesses of the State and the Attorney General are regarded as secrets of the State, the disclosure of which would be prejudicial to the public interest. Therefore, the witnesses are protected, and all evidence thereof is excluded.
Newborn v . Christiana Psychiatric Services , 2016 WL 7015715, at *4 (Del. Super. Ct. 2016)
1999 WL 743082
State v . Brown , 36 A. 458, 464 (Del. Oyer. Ter. 1896)
Similar to prosecutorial privilege, governmental privilege is not absolute. A balancing test is employed to weigh the interests of the plaintiff against that of the respondent. Criteria for balancing these competing interests have come to be known as the Frankenhauser factors. Other Delaware Courts have utilized these factors in determining if requested materials are protected by governmental privilege. The Court now turns to the Frankenhauser factors as follows:
See, e.g., Brady, 2009 WL 6312181, at *3 (citing Alexander, 1999 WL 743082, at *1) ("the privilege is not absolute, but qualified").
Id.
Frankenhauser v . Rizzo , 59 F.R.D. 339 (E.D.Pa. 1973), abrogated on other grounds.
Griffin v . Sigma Alpha Mu Fraternity , 2011 WL 2120064 (Del. Super. 2011); White v . Ribbons & Bows Daycare, Inc., 2016 WL 4394726 (Del. Super. 2016).
(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information;
There is little reason to believe that the disclosure of the CAC interview tapes will discourage citizens from giving statements to the police in future cases. The matter is private and only the permitted parties outlined in this Order may have access to the information contained in the interview tapes. Further, custody proceedings are closed to the public; thus, any information shared within the proceeding is not made public knowledge.
(2) the impact upon persons who have given information of having their identities disclosed;
There is little to no impact upon the persons who engaged in the CAC interview. Neither child gave their interview as a confidential informant. Rather, the identities of K.C.H. and R.I.H. are well known as the parties involved in litigation are their parents. Additionally, as Ms. Hayes argued during oral arguments on September 30, 2019, the allegations of child abuse by Father are well known. Mother has made Father's alleged abuse towards the girls a basis of her PFA Petition, the alleged abuse has been reported to Dr. Zingaro, and Father has been questioned with respect to the allegations.
(3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure;
The Court does not find that governmental self-evaluation and consequent program improvement will be chilled by the disclosure of the CAC interview tapes. The government agencies involved defer to the MOU. Pursuant to the MOU, information obtained by Multidisciplinary Team Members may be disseminated by the member agency that owns said information. In this case, DSP owns the CAC interview tapes. CAC argues that a dissemination of the interview tapes are in violation of the MOU since the Family Court is not a participating party to the MOU; however, the Delaware Code governs who may access the information sought. The MOU cites 16 Del. C. § 906(e) as the relevant code for the dissemination of requested information. Pursuant to 16 Del. C. § 906(e), "the Division shall only release information to persons who have a legitimate public safety need for such information or a need based on the health and safety of a child subject to abuse, neglect or the risk of maltreatment, and such information shall be used only for the purpose for which the information is released." Although the Family Court is not a participating member bound by the MOU, the Family Court nonetheless acts in accordance with the best interests of the above-captioned children. Thus, for cases such as this, consequent program improvement would not be chilled, but rather encouraged, to include provisions relating to custody proceedings.
Memorandum of Understanding for the Multidisciplinary Response to Child Abuse and Neglect, 31 (2017).
Id.
Id.
The information sought does not inquire into the thought processes of the CAC interviewer. At oral arguments on September 30, 2019, David G. Culley, Esquire, argued that the CAC's role is limited to the interview of the minor children. Thus, CAC does not make decisions or determinations on the credibility of the girls' statements. CAC interviewers take notes during the interview; however, Mother has not requested that the interviewer's case notes be released with the tapes.
(5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question;
Mother is neither an actual nor potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question.
(6) whether the police investigation has been completed;
Based on the testimony received during oral arguments on September 30, 2019, the Court is unable to determine if an investigation has been completed. However, Ms. Hayes stated that she believed that any and all DFS and DSP investigations of Father had been closed and deemed to be unsubstantiated.
(7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation;
This criterion is not applicable in this case.
(8) whether the plaintiff's suit is non-frivolous and brought in good faith;
Mother's claims are not frivolous and have been brought in good faith. The case at hand involves the custody and overall wellbeing of the above-captioned children. As stated above, the video recordings of the children's CAC interview is important because they relate to alleged child abuse by Father. It is not unfounded that Mother wants the information relating to Father's alleged abuse towards the girls to be a part of the Court's custody determination.
(9) whether the information sought is available through other discovery or from other sources; and
The information sought is available through direct testimony of the girls or through a Court interview of the minor children; however, it could be detrimental to K.C.H. and R.I.H. As stated above, according to the MOU, interviews by multiple interviewers "could be detrimental to children and can create issues for successful civil and criminal case dispositions." Making the children testify about their alleged abuse from Father months after the alleged incident occurred may re-traumatize or re-victimize them. Further, although the Court could interview the minor children, the information that the girls provide may not be as reliable since the alleged incident with Father occurred months ago. In addition, the Court does not have the same training the CAC has with respect to interviewing children who may have been victims of abuse.
Child Protection Accountability Commission, Memorandum of Understanding for the Multidisciplinary Response to Child Abuse and Neglect, 19 (2017)
(10) the importance of the information sought to the plaintiff's case.
Frankenhauser v . Rizzo , 59 F.R.D. 339, 344 (E.D.Pa. 1973)
The information sought in this case is important for the reasons set forth under factor eight (8).
The applicable Frankenhauser factors demonstrate that no harm will be done by the release of the CAC interview tapes of the above-captioned children. The Court believes the tapes' release is necessary for a fair custody determination.
III. Protective Order
All parties were agreeable to an in camera review of the CAC interview tapes. Following an in camera review, all parties agreed that if the Court deemed appropriate, the CAC interview tapes may be disseminated on a limited basis. Thus, in order to limit the dissemination of the CAC interview tapes, the Court must issue a protective order.
Parties may move for a protective order pursuant to Rule 26 of the Delaware Family Court Rules of Civil Procedure. The Court may issue a protective order upon the showing of "annoyance, embarrassment, oppression, or undue burden or expense." The moving party must demonstrate "good cause" for the issuance of a protective order. In interpreting similar language, Delaware Courts have held that a restriction on discovery should only be imposed when "strong justification exists for such action." The protection from annoyance "must be construed to apply only to the extraordinary conditions that exceed the degree of annoyance that is present and inherent in any litigation." Therefore, the party requesting a protective order bears a "substantial burden."
Del. Fam. Ct. Civ. R. 26(h) (2014).
Id.
ES . S v. BE. S., File No. CN09-04319, 2013 WL 8374353 *1 (Del. Fam. Ct. September 10, 2013) (citing Taglialatela v . Galvin , C.A.No. 5841-MA., 2012 WL 6681871 *1 (Del. Ch. December 7, 2012).
Id.
Ramada Inns , Inc. v. Drinkhall , 490 A.2d 593, 598 (Del. Super. Ct., 1985).
Among the factors to consider in determining if a request for a protective order should be granted are the interests of the parties involved. This involves a "balancing test" that gives consideration to the potential prejudice to the non-movant for the loss or destruction of relevant information against the benefit of efficiency in time and expense for the party seeking the protective order. Where information is relevant to an issue raised by the pleadings, protection should be applied only upon a showing that the annoyance, embarrassment, or oppression which a party would endure from pre-trial disclosure of the information would exceed that which an ordinary litigant would endure in the course of litigation. Furthermore, "because the application requesting a protective order seeks to avoid or limit discovery, timing is key. Such a request must be timely, as determined by the Court's discretion."
Taglialatela v . Galvin , C.A.No. 5841-MA., 2012 WL 6681871 *1 (Del. Ch. December 7, 2012).
Id.
Ramada Inns , Inc. v. Drinkhall , 490 A.2d 593 (Del. Super. Ct., 1985).
Taglialatela v . Galvin , C.A.No. 5841-MA., 2012 WL 6681871 *1 (Del. Ch. December 7, 2012). --------
In Taglialatela v. Galvin, C.A.No. 5841-MA., 2012 WL 6681871 *1 (Del. Ch. December 7, 2012), Taglialatela, a trust beneficiary, sought the removal of Galvin as trustee. During discovery, Taglialatela requested and received the Employer Identification Number ("EIN") associated with the trust. Thereafter, Galvin requested a protective order for the EIN, alleging that Taglialatela was using the number as a means to file frivolous lawsuits and to harass and annoy him. In denying the request for a protective order, the Chancery Court stated that Galvin had failed to demonstrate good cause for the order. The Chancery Court also stated that Galvin's complaints regarding Taglialatela's conduct did not "lift the case beyond" what is expected in litigation over the handling of a trust. Finally, due to the fact that Galvin had already produced the EIN prior to his request for a protective order, the Chancery Court stated that Galvin was not permitted to retroactively apply protection.
In Ginsburg v. Philadelphia Stock Exchange, Inc., Civil Action No. 2202-CC, 2007 WL 1275869 *1 (Del. Ch. April 18, 2007), the defendant sought a protective order to prevent the plaintiff from sharing sensitive information that was obtained through discovery with a "consultant" who was an alleged competitor of the defendant. Without making any precise factual determinations as to the defendant's allegations, the Court found that the consultant was "undoubtedly" a competitor of the defendant, and that providing the information to the competitor would pose a "significant risk" to the defendant.
The Court finds the facts of this case are inapposite to those found in Taglialatela. Specifically, the DDOJ, DFS, CAC, and DSP are not seeking to constrain the scope of Mother's discovery. Rather, the purpose of DDOJ, DFS, CAC, and DSP's respective Responses are to prohibit the dissemination of the CAC interview tapes to anyone other than Dr. Joseph Zingaro. Moreover, the facts of this case are not common to custody proceedings. Thus, a request for the release of the CAC interview tapes "lifts this case beyond" what is expected litigation over a custody determination.
Conversely, the Court finds that the facts of this case are similar to those in Ginsburg. As previously stated, the Court finds that the purpose of DDOJ, DFS, CAC, and DSP's respective Responses are to prohibit the dissemination of the CAC interview tapes to anyone other than Dr. Joseph Zingaro in order to preserve the confidentiality of the parties involved. Although DDOJ, DFS, CAC, and DSP have not identified any particular persons or entities that would pose a threat were they to obtain the CAC interview tapes, the Court does not believe that such identification is a prerequisite to the issuance of a protective order. The Court is mindful that the CAC interview tapes contain statements that the minor children have made towards both Mother and Father; however, the Court does not find, pursuant to Ginsburg, that allowing the parties to review the tapes while in the presence of counsel poses a threat.
The Court finds that the DDOJ, DFS, CAC, and DSP have shown good cause for the issuance of a protective order. Due to the allegations of child abuse in this case, it is extremely likely that the information produced from the CAC tapes will include sensitive information relating to the privacy of the minor children and parties. Further, as the DSP expressed, their intention is not to become the "clearinghouse" for information. Limiting the parties' access to the CAC interview tapes will ensure that the information from the tapes are used solely in determining the best interests of the minor children involved.
In contrast, the Court finds that Mother has failed to show that she would suffer any prejudice from the issuance of a protective order. Because the DDOJ, DFS, CAC, and DSP are requesting that the dissemination of the interview tapes be extremely limited to preserve confidential information rather than limiting the scope of discovery in its entirety, Mother's ability to pursue her case would not be inhibited by the issuance of a protective order.
Lastly, the Court finds that the issuance of a protective order is not time-barred. Mother filed her Motion for Third Party Discovery on June 25, 2019. All parties had their Responses field by August 23, 2019, previous to the Oral Argument held on September 30, 2019.
CONCLUSION
For the reasons stated above, the Court orders the following: (1) Dr. Joseph Zingaro shall review the CAC interviews of the above-captioned children, which took place on June 6, 2019 and August 28, 2019; (2) Thomas E. Gay, Esquire, and Theresa M Hayes, Esquire, shall be permitted to review the CAC interview tapes; (3) Mother and Father shall be permitted to review the CAC interview tapes while in the presence of their respective attorneys; (4) no copies of the CAC interview tapes of the above-captioned children are to be made; (5) all parties are prohibited from possessing the CAC interview tapes outside of their respective attorney's office; (6) parties are prohibited from publicly disclosing any information within the CAC interview tapes; (7) no persons are to view the CAC interview tapes other than those outlined in this Order; (8) the Delaware State Police, as custodians of the original CAC interview tapes, shall produce one (1) copy of the aforementioned CAC tapes to Ms. Hayes within 15 days of the date of this Order; (9) the Delaware State Police shall produce two (2) copies of the aforementioned CAC tapes to Mr. Gay within 15 days of the date of this Order; and (10) once Mr. Gay is in possession of the CAC tapes, he shall retain one (1) copy for himself, and produce the remaining copy to Dr. Joseph Zingaro.
IT IS SO ORDERED this 25th day of November 2019.
/s/_________
PETER B. JONES, JUDGE PBJ cc: