Any governmental privilege existing under Delaware common law or created by the United States or Delaware Constitutions, by Delaware or federal statute or by Delaware court rule is recognized.74 This privilege does not apply in suits between private parties and governmental bodies.75 If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, a court may make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant or dismissing the action.76
One governmental privilege that has been recognized applies to communications between witnesses and governmental investigators regarding actual or potential prosecutions or regulatory enforcement actions, which are regarded as secrets of state or matters the disclosure of which would be prejudicial to the public interest.76.1 When a claim of privilege is made as to these documents or communications, the court must weigh the competing interests of the state and the party seeking disclosure.76.2 The privilege, however, does not apply to information gathered by the Department of Justice in connection with purely civil actions.76.3
It has also been recognized that judges, in circumstances where they are permitted to testify, may not be asked questions about their mental processes in reaching judicial decisions.76.4
In an action brought pursuant to Delaware’s Freedom of Information Act76.5 the Superior Court recognized the existence of an executive privilege, protecting communications to and from the Governor in the performance of his or her duties.76.6 The privilege is qualified and whether it may be asserted successfully or not in the context of litigation depends on whether or not the need for protecting the confidentiality of executive communications outweighs the litigant’s need for disclosure.76.7
74. D.R.E. 508(a), (b). See also Morris v. Avallone, 272 A.2d 344, 347 (Del. Super. 1970) (recognizing that government agents or officials are exempted from disclosure of general materials in their files at the insistence of parties engaged in private litigation); Artesian Water Co. v. New Castle County, C.A. No. 5106, slip op. at 5, Marvel C. (Del. Ch. Apr. 9, 1981). Although D.R.E. 508(b) recognizes that a governmental privilege may exist, it does not codify such a privilege. Lefferts v. J.C. Penney Co., C.A. No. 85C-JN-87, slip op. at 1, Balick, J. (Del. Super. Aug. 3, 1989). It is as yet unclear what effect the designation of certain categories of government documents as exempt from disclosure under Delaware’s Freedom of Information Act, 29 Del.C. § 10001, et seq., will have on the recognition of governmental privileges.
75. Artesian Water Co. v. New Castle County, C.A. No. 5106, slip op. at 5, Marvel, C. (Del Ch. Apr. 9, 1981).
76. D.R.E. 508(c). See also Beckett v. Trice, C.A. No. 92C-08-029, slip op. at 6, Lee, J. (Del. Super. June 6, 1994), aff’d mem., 660 A.2d 393 (Del. 1995).
76.1. State v. Brown, 36 A. 458, 463 (Del. O. & T. 1896); Atamian v. Bahar, C.A. No. 01C-03-031HDR, slip op. at 3, Ridgely, J. (Del. Super. Feb. 22, 2002); Williams v. Alexander, C.A. No. 98C-05-036, Quillen, J. (Del. Super, June 29, 1999); Beckett v. Trice, C.A. No. 92C-08-029, slip op. at 6, Lee, J. (Del. Super. June 6, 1994), aff’d mem., 660 A.2d 393 (Del. 1995).
76.2. Atamian v. Bahar, C.A. No. 01C-03-031HDR, slip op. at 3, Ridgely, J. (Del. Super. Feb. 22, 2002); Williams v. Alexander, C.A. No. 98C-05-036, Quillen, J. (Del. Super, June 29, 1999).
76.3. State ex rel. Brady v. Ocean Farm Ltd. Partnership, C.A. No. 2036-S, Jacobs, V.C. (Del. Ch. Feb. 14, 2002).
76.4. McCool v. Gehret, 657 A.2d 269, 280 n.12 (Del. 1995).
76.5. 29 Del. C. § 10001, et seq.
76.6. Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782-86 (Del. Super. 1995), app. dismissed mem., 670 A.2d 1338 (Del. 1995). A similar claim of privilege has been rejected as applied to the deliberative process of administrative agencies. Chemical Indus. Council v. State Coastal Zone Indus. Control Bd., C.A. No. 1216-K, Jacobs, V.C. (Del. Ch. May 19, 1994).
76.7. Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 782-86 (Del. Super. 1995), app. dismissed mem., 670 A.2d 1338 (Del. 1995).
© 2010 David L. Finger