Opinion
C.A. No. 01C-11-241 RRC (Consolidated Case).
Submitted: January 27, 2003.
Decided: April 25, 2003.
On Plaintiff's "Motion in Limine to Redact Portions of Plaintiff's S.B.I. Report." GRANTED.
Ben T. Castle, Esquire Neilli Mullen Walsh, Esquire Timothy E. Lengkeek, Esquire Young Conaway Stargatt Taylor Attorneys for Plaintiff
B. Wilson Redfearn, Esquire Tybout, Redfearn Pell Attorney for Barrett Business Services
Douglas B. Catts, Esquire Schmittinger Rodriguez Attorney for Plaintiff
Robert K. Pearce, Esquire Ferry, Joseph Pearce Attorney for IMED Corp.
John A. Elzufon, Esquire Elzufon Austin Reardon Tarlov Mondell, P.A. Attorney for Robert Reiderman, M.D. and Orthopaedic Specialty Center
Christopher J. Sipe, Esquire Bailey Wetzel, P.A. Attorney for Sedgwick Claims Management Services, Inc.
Anne L. Naczi, Esquire Griffin Hackett, P.A. Attorney for Richard P. DuShuttle, M.D. and R.P. DuShuttle, M.D., P.A.
David L. Baumberger, Esquire Chrissinger Baumberger Attorney for City Cleaning Contractors Corp.
Dear Counsel:
Currently before the Court is Plaintiff's January 13, 2003 Motion in Limine through which she seeks the court-ordered redaction of those dispositions listed as "dismissed," "nolle prosequi," or "disposition unobtainable" on her State Bureau of Identification Personal Criminal History (Plaintiff's "S.B.I. Records"). Plaintiff moves the Court to enter such order before she provides her S.B.I. Records to the defendants in this consolidated medical malpractice, bad faith, and negligence action. Because those dispositions to which Plaintiff objects to disclosing in an unredacted form which are listed as "dismissed" and "nolle prosequi" are not "convictions" and would thus be inadmissible at trial under Delaware Rule of Evidence 609(a), the defendants in this action are not entitled to the discovery which they now seek; the unredacted information sought by the defendants does not appear "reasonably calculated to lead to the discovery of admissible evidence," and such information is not "relevant," particularly in light of Plaintiff's strong interest in being free of improper and unwarranted intrusions into her privacy pursuant to well-recognized statutory Delaware public policy. With regard to those charges listed as "disposition unobtainable," the Court cannot now ascertain whether those charges in fact resulted in Rule 609(a) "convictions," so Plaintiff is hereby ordered to ascertain and inform the defendants in this case whether any of those charges resulted in "convictions."
Plaintiff does not object to producing evidence of her criminal convictions that may be admissible at trial pursuant to Delaware Rule of Evidence 609(a).
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
Plaintiff filed a three-count Complaint largely predicated on injuries Plaintiff averred resulted from a fall that occurred on December 9, 1999. As a result, Plaintiff alleged medical negligence against Richard P. DuShuttle, M.D. and R.P. DuShuttle, M.D., P.A. "in failing to thoroughly examine [her] and recommend and perform low-back disc surgery. . . ." Furthermore, Plaintiff alleged against Robert Redeirman, M.D., Orthopaedic Specialty Center, and IMED Corp. a violation of "a duty to perform [on her] a competent, accurate, and objective medical examination within the acceptable standard of care. . ." followed by the publishing of "a false report that. . .accused [her] of exaggerating an magnifying her symptoms. . . ." Lastly, Plaintiff alleged against Barrett Business Services, IMED Corp., Sedgwick Claims Management Services, Inc., and City Cleaning Contractors Corp. violations of the "duties of good faith, fair dealing, and reasonable and objective conduct. . .in the processing of her claims for workers' compensation benefits." The cases were subsequently consolidated.
Compl. ¶¶ 10, 11.
Id. ¶ 36.
Id. ¶ 41.
Id. ¶ 42.
Id. ¶ 47.
As a part of the processing of her workers' compensation claim, Plaintiff was examined by Terrence R. Malloy, M.D., F.A.C.S., who noted in a written opinion that "after [he] was finished [examining]. . .Ms. Frazier, [he and a nurse in his office] observed her. . .leaving the examining room. . .using a cane and walking with a pronounced limp[,]" and that the nurse immediately thereafter observed Plaintiff "cross the street. . .not limping at all." Similarly, when examined by Daniel J. Freedenburg, M.D. as part of those workers' compensation proceedings, Plaintiff was again described as "exaggerating" and/or "embellishing" her "psychological and physical symptoms." These two reports, together with inconsistent deposition testimony by Plaintiff, apparently prompted the defendants in this action to seek a court order that would compel Plaintiff to obtain her S.B.I. Records, which relief this Court granted by motion on October 29, 2002. Resolution of what part of Plaintiff's S.B.I. Records were to be produced to Defendants was left for another day.
Report of Terrence R. Malloy, M.D., F.A.C.S., at 3 (Ex. "C" to Def. Barrett Business Service's Resp.).
Report of Daniel J. Freedenburg, M.D., at 8 (Ex. "D" to Def. Barrett Business Service's Resp.).
For example, Plaintiff originally testified that she had been arrested only twice in her life (Frazier Dep. of 6/19/02 at 33 (Ex. "A" to Def. Barrett Business Service's Resp.)), but subsequently admitted that she had pleaded guilty to a crime against her employer involving the submission of inaccurate "time sheets." (Frazier Dep. of 6/19/02 at 38).
Dkt. #98. Plaintiff was ordered to appear at the State Bureau of Identification in order to personally obtain her own records; the motion currently under consideration was filed thereafter, but before release of Plaintiff's S.B.I. Records to the Defendants.
The Court has reviewed Plaintiff's unredacted S.B.I. Records in camera.
THE CONTENTIONS OF THE PARTIES
Plaintiff now moves this Court "to redact those portions of [her]. . . .S.B.I. Report that are listed as dismissed, nolle prosequi, or disposition unobtainable." She argues that those entries "are wholly irrelevant to the claims and defenses asserted in this action." Although she states that she "will provide evidence of convictions [of crimes admissible for impeachment purposes pursuant to Delaware Rule of Evidence 609(a)] to defense counsel[,]" Plaintiff argues that all entries with the above non-conviction designations "would be inadmissible under DRE 609." Plaintiff additionally contends that disclosure of the charges she now seeks to redact would not lead to the discovery of admissible evidence because the Defendants "will already have full and complete information concerning Plaintiff's convictions when a redacted form of the report is produced." Lastly, Plaintiff argues "the only plausible reason for the discovery [of her unredacted S.B.I. Records] is to embarrass the Plaintiff and dissuade her from pursuing a legitimate claim."
Pl.'s Mot. at 1.
Id. ¶ 1.
Id. ¶ 2. Delaware Rule of Evidence 609(a) provides, in pertinent part, that "[f]or the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted but only if the crime (1) constituted a felony. . .or (2) involved dishonesty or false statement, regardless of punishment."
Id. ¶ 3.
Id. ¶ 4.
In response, defendant Barrett Business Services (on behalf of all defendants, by agreement) (collectively "Defendants") contends that Plaintiff's motion should be denied "[d]ue to the fact that Plaintiff's credibility is at issue[.]" Defendants also posit that they "should be entitled to examine the full, unredacted S.B.I. Report, as it may reveal other employers or lead to additional witnesses who have relevant and admissible evidence, including information concerning prior medical history." "Thus," Defendants argue, "it is clear that the evidence in the S.B.I. Report may lead to discovery of admissible evidence such as evidence that may contradict Plaintiff's prior testimony." Defendants maintain that an opportunity to examine Plaintiff's unredacted S.B.I. Report "is consistent with the broad nature of discovery and [is] relevant to the pending litigation." Lastly, Defendants pledge that they "do not seek to annoy or embarrass Plaintiff by requesting the unredacted portions of the S.B.I. Report[,]" but rather that they are "merely seeking information which is reasonably calculated to lead to the discovery of admissible evidence."
PLAINTIFF IS NOW ENTITLED TO REDACT CHARGES LISTED AS "DISMISSED" AND AS "NOLLE PROSEQUI," BUT NOT AS "DISPOSITION UNOBTAINABLE" (AT THIS STAGE)
Def. Barrett Business Service's Resp. ¶ 6. The Defendants' Response, i.e., that they are entitled to Plaintiff's unredacted records, is largely predicated on their contention that this case involves Plaintiff's credibility ("A major facet if this case involves the Plaintiff's credibility." Resp. ¶ 3).
Id.
Id.
Id.
Id. ¶ 9.
During discovery, a party is entitled to discover "any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." Therefore, "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." However, one stated purpose of Delaware's State Bureau of Identification is "to create and maintain an accurate and efficient criminal justice information system. . .consistent with. . .the right of individuals to be free from improper and unwarranted intrusions into their privacy."
SUPER.CT.CIV.R. 26(b)(1); William v. Morris, 223 A.2d 390, 392 (Del.Super.Ct. 1966).
SUPER.CT.CIV.R. 26(b)(1); Williams, 223 A.2d at 392.
DEL. CODE ANN. tit. 11, ¶ 8501(a) (2001).
Here, no party has cited any case from Delaware or elsewhere (or any secondary authority) in support of their respective positions as to whether a party's non-conviction criminal history is discoverable. Nevertheless, sensitive information such as a person's State Bureau of Identification Personal Criminal History will not automatically be produced in discovery to parties seeking such information; as was done in this case, a party making such a request must seek a court order permitting the release of the information. The statutory language that S.B.I. Records are to be maintained "consistent with. . .the right of individuals to be free from improper and unwarranted intrusions into their privacy" is in harmony with this Court's concern over the potential abuse of such information.
In addition to the language contained at title 11, section 8501(a), title 11, section 8601 of the Delaware Code provides that one of the purposes of Delaware's Criminal Justice Information System is "to maintain an accurate and efficient criminal justice information system. . .consistent with. . .the right of individuals to be free from improper and unwarranted intrusions into their privacy." Similarly, in the context of expungement of criminal records, title 11, section 4371 of the Delaware Code provides that Delaware's expungement statute "is intended to protect innocent persons from unwarranted damage which may occur as the result of arrest and other criminal proceedings which are unfounded or unproven."
Furthermore, at least one treatise has noted that although an adversary's criminal record "is relevant and discoverable because it may be useful for impeachment purposes," portions of that criminal record may not be discoverable in every case because "discovery of information relating to criminal records solely for impeachment purposes might be limited to the types of evidence that would be admissible for those purposes under. . .Federal Rule of Evidence [609]." Under Federal Rule of Evidence 609, the following "do not qualify as convictions," i.e., are "inadmissible": "an indictment"; "an arrest"; "acts that may be criminal but have not been prosecuted"; and "a conviction that has been vacated on appeal."
6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 26.41[9][a][iii], at 26-135 (3d ed. 2003).
Id. at 26-135 to 26-136. D.R.E. 609(a)(1) is "virtually identical" to its federal counterpart, and D.R.E. 609(a)(2), "like its federal counterpart," requires the Court to admit prior convictions involving dishonesty or false statements. Archie v. State, 721 A.2d 924, 928 (Del. 1998).
4 JACK B. WEINSTEIN MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 609.03[1], at 609-13 to 609-14 (citations omitted) (Joseph M. McLaughlin ed., 2d. ed. 2002)
Given that those charges listed on Plaintiff's S.B.I. Records as "dismissed" or "nolle prosequi" are not "convictions" for purposes of Delaware Rule of Evidence 609(a), Defendants should not now be able to discover them for impeachment purposes. Nor should Defendants be able to discover them for the other purpose that they implicitly advance, i.e., the discovery of other evidence with which to dispute the causation of Plaintiff's alleged injuries. This Court gives weight to Plaintiff's concerns regarding the privacy of her criminal records insofar as non-"convictions" are concerned; the fact that Plaintiff's "credibility" is at issue in this case (as occurs in so many Superior Court actions) does not render her non-"conviction" arrest records otherwise discoverable.
Plaintiff voluntarily agreed in this case to produce records of her convictions falling under Delaware Rule of Evidence 609(a). Therefore the Court does not reach the issue of what circumstances would otherwise justify the discovery of the evidence of the Rule 609(a) "convictions" of a party or of a witness. Additionally, the Court notes that although Defendants have not made a sufficient showing in this case to warrant the discovery of the Plaintiff's unredacted criminal history, another case with different facts might warrant a different result.
From its in camera review, the Court notes that listed within Plaintiff's S.B.I. Records are some recent charges identified as "disposition unobtainable." Consistent with Plaintiff's agreement with Defendants, and pursuant to this opinion, if such charges resulted in "convictions" admissible under Delaware Rule of Evidence 609(a), they too should be disclosed to Defendants. Accordingly, the Plaintiff is hereby directed to advise Defendants as to whether any of those charges listed as "disposition unobtainable" in her S.B.I. Records in fact resulted in a Rule 609(a) "conviction," in which case such conviction shall be disclosed to Defendants. (All the arrests are for crimes that, if resulting in a conviction, would potentially be admissible under Delaware Rule of Evidence 609(a).) Plaintiff shall so advise Defendants on or before June 1, 2003. Otherwise, discovery by the Defendants of those charges listed as "dismissed" or "nolle prosequi" in Plaintiff's S.B.I. Records is not "reasonably calculated to lead to the discovery of admissible evidence," nor is it "relevant to the subject matter involved in the pending action." Accordingly, Plaintiff's "Motion in Limine to Redact Portions of Plaintiff's S.B.I. Report" is GRANTED.
SUPER.CT.CIV.R. 26(b)(1).
Id. 11
IT IS SO ORDERED.