Summary
granting in camera review where it was "at least questionable as a blind threshold issue that the [challenged] minutes would fall into the category of confidential communications"
Summary of this case from Drachman v. BioDelivery Scis. Int'lOpinion
No. 99C-07-109 WTQ.
Submitted: April 4, 2000.
Decided: April 24, 2000.
Bettina C. Ferguson, Esquire 206 Fox Road, Dover, DE. 19901.
Mason E. Turner, Jr. Esquire Prickett Jones Elliot, 1310 King Street, P.O. Box 1328, Wilmington, DE. 19899.
Kevin J. Connors, Esquire Marshall Dennehey Warner Coleman Goggin 1220 Market Street #300, Wilmington, DE. 19801.
Louis J. Rizzo, Esquire Reger Rizzo, One Commerce Center, Suite 731 1201 Orange Street, Wilmington, DE. 19801.
Letter Opinion and Order on Plaintiff's Motion to Compel Discovery from Defendant Wesley College — IN CAMERA PRODUCTION ORDERED Dear Ms. Ferguson, Mr. Connors, Mr. Rizzo, and Mr. Turner:
At the oral presentation of Plaintiff's Motion to Compel Discovery from Wesley College on March 20, 2000, the Court agreed to permit further briefing by letter on the Motion. The Motion seeks production of the minutes of a special meeting of the Executive Committee of the College's Board of Trustees held July 31, 1995. In addition to the Motion (Dkt. No. 28), and the Response thereto (Dkt. No. 30), the Court has considered the Plaintiff's letter memorandum (Dkt. No. 35) and the answering letter of Defendants Wesley College and Reed M. Stewart (Dkt. No. 36).
It seems clear to the Court that the College has not waived its privilege by any discovery responses or by the inclusion of non-Board administrative personnel at the meeting. Corporations commonly have and need the presence of non-Board management personnel at Board and Executive Committee meetings. No waiver should attach thereby and any reasonable review of the record here indicates a timely good faith assertion of the privilege disclosing the surrounding facts and circumstances so the opposing party and the Court and appreciate the context. Moreover, nothing has been shown to raise any crimefraud exception to the privilege.
The dispute then comes down to whether the minutes may contain factual information not protected by the privilege. The privilege protects communications "made for the purpose of facilitating the rendition of professional legal services" which are "confidential," that is, "not intended to be disclosed to third parties." Delaware Rule of Evidence 502. Without at all questioning the good faith of the Defendants, given the inherent nature of the document, it seems to the Court that it is at least questionable as a blind threshold issue that the entire minutes would fall into the category of confidential communications. While the Court does not like in camera inspections for reasons that this Judge has previously expressed (Riggs National Bank, et al. v. Willis S. Boyd, MD., et al., Del. Super., C.A. No. 96C-05-122, Quillen, J. (Feb. 23, 2000); Clausen v. National Grange Mut. Ins. Co., Del. Super., 96C-11-073, Quillen, J. (Aug. 1, 1997)), given the clear question here and the limited document at issue and the nature of the document, perhaps an in camera review is appropriate and not burdensome.
The Defendants are directed to produce in camera a copy of the minutes of the special meeting of the Executive Committee of the Board of Trustees of Wesley College held on July 31, 1995 within one week of the date of this Opinion. The minutes should be authenticated by an affidavit of an appropriate officer or Trustee of the College. IT IS SO ORDERED.
Sincerely, _____________________ William T. Quillen
WTQ/caj oc: Prothonotary