Opinion
No. 07C-08-067-JOH.
Submitted: March 4, 2008.
Decided: March 13, 2008.
Upon Motion of the Plaintiff to Compel the Deposition of Defendant Helen L. Gawel — GRANTED .
Upon Motion of the Defendant for Protective Order — DENIED .
Frederick S. Freibott, Esquire, of the Freibott Law Firm, P.A., Wilmington, Delaware, attorney for plaintiff.
Cynthia G. Beam, Esquire, of the Law Offices of Cynthia G. Beam, Wilmington, Delaware, attorney for defendant.
MEMORANDUM OPINION
The issue presented to the Court is the plaintiffs' motion to compel the deposition of defendant Helen Gawel. She has moved, in turn, for a protective order to block that deposition.
This is a wrongful death action. Linda Shannon was driving a vehicle in which her husband was a passenger. Gawel was driving a vehicle which collided with the Shannon vehicle on December 25, 2006. Allegedly Gawel ran a red light, and she was charged with that offense. Mr. Shannon died on January 8, 2007, allegedly of injuries sustained in the accident. As a result of Mr. Shannon's death, Gawel has been indicted for operation of a vehicle causing death. The trial on this criminal charge was originally set for September 5, 2007. But since the constitutionality of this statute, under which she has been charged, has been questioned, all cases pending in this Court involving this statute have been stayed. The Delaware Supreme Court has before it an action in which the constitutional issue will be resolved.
The plaintiffs want to take Gawel's deposition now. She has denied any negligence. She is seventy-six, but there is no immediate concern about her health. Plaintiffs, nevertheless, remain concerned that Gawel's age may mean she may never be deposed. Plaintiffs acknowledge the potentially incriminating answers Gawel may give when and if deposed while she faces open criminal charges for the same incident which is the subject matter of this civil action. In her response to plaintiffs' motion to compel and in her own motion for a protective order, Gawel states she will invoke her right to not answer questions which may incriminate her. Respecting this, plaintiffs have offered to take her deposition but then place it under seal. Gawel, in turn, has offered to answer interrogatories and place those under seal. In neither case would Gawel, however, invoke her right against self-incrimination.
When the Court heard oral argument on the parties' motions and those alternatives were mentioned, the Court expressed concern whether, if Gawel answered all questions, it could prevent the State from gaining access to anything "under seal." The Court also wanted more time to examine the cases cited by the parties in support or their positions.
These motions come up on the Court's routine civil motion calendar. The Court viewed the issue as one compelling research and reflection.
That examination prompts the following:
1. Plaintiffs are entitled to depose Gawel now.
2. Any invocation of any right against self-incrimination is personal and only she, not her counsel, can invoke it.
3. The invocation of that right cannot be blanket barrier to all questions nor a basis to block the taking of a deposition.
4. Only the Court will and can ultimately determine whether a direct answer to a particular question could reasonably be self-incriminating.
Steigler v. Insurance Co. of North America, 306 A.2d 742, 743 (Del. 1973).
Getty Refining and Marketing Co. v. Park Oil, Inc., 1978 WL 4950 (Del.Ch.) at *2.
Mumford v. Croft, 93 A.2d 506, 508 (Del.Super. 1952).
Plaintiffs will be permitted to proceed with the deposition and counsel in the criminal matter must also be present. Even if on the advice of counsel, Gawel must personally invoke any right against self-incrimination.
Plaintiffs should ask all the questions appropriate for the deposition. They will have the choice to accept a response invoking the self-incrimination right. Or plaintiffs can move the Court to compel an answer to any question where that right is invoked. The Court will then make the determination of whether the right has been correctly invoked.
"In determining the initial question of reasonable possibility of self-incrimination the Court should resolve doubt in favor of the privilege and should extend the privilege not only to answers which alone would support a conviction of crime but also to answers `which would furnish a link in the chain of evidence needed to prosecute the claimant.'" Id. at 509.
Conclusion
For the reasons stated herein, plaintiffs' motion to compel is GRANTED consistent with the parameters outlined, and defendant's motion for protective order is DENIED.IT IS SO ORDERED.