Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ROBERT QUILL, Plaintiff, v. CATHOLIC DIOCESE OF WILMINGTON, INC., a Delaware corporation; ST. ELIZABETH'S CATHOLIC CHURCH, a Delaware corporation; Rev. FRANCIS G. DELUCA, individually and in his official capacity; and Rev. MICHAEL A. SALTARELLI, in his official capacity, Defendants. : : : : : : : : : : : : : : :

C.A.No. 07-435-SLR

PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT DELUCA'S MOTION FOR PROTECTIVE ORDER Although defendant DeLuca has violated the plain terms of the Rule 16 Scheduling Order in filing his protective order motion without prior "approval from the court following a discovery conference," out of an abundance of caution, plaintiff submits this response to the defense motion. This latest defense motion is yet another in a long series of delaying tactics intended to further postpone the day of reckoning of an acknowledged child molester who has already admitted in court pleadings to sexually abusing plaintiff. After terrorizing plaintiff and numerous other young children in this state for decades,1 defendant DeLuca was transferred from active public ministry by defendant Catholic Diocese of Wilmington ("Diocese") and allowed to move

Defendant Diocese received its first "admitted, corroborated or otherwise substantiated allegations of sexual abuse of minors" by DeLuca in 1966. (Compl. & Diocese Ans. ¶¶ 77, 43).

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to New York state where he continued his criminal ways, was subsequently convicted of molesting yet another young boy there and was recently released from prison. Facts As explained below, defendant DeLuca's factual recitation and accusations of ethical wrongdoing are flatly contradicted by the written record of communications between counsel, as well as by other evidence. A. DeLuca Refuses to File an Answer. On July 12, 2007, Plaintiff filed his Complaint. (D.I. 1). Personal service on defendant DeLuca was achieved on July 19, 2007 at 12:46 p.m. at his residence in Syracuse, N.Y. (D.I. 8).2 Under Fed.R.Civ.P. 12(a)(1)(A), DeLuca's Answer was due on August 8, 2007. On July 31, 2007, counsel received a telephone call from Mr. Steve Casarino, Esquire, who stated that he had been retained by DeLuca to represent him. DeLuca then was given a one week extension of time until August 15, 2007 to respond to the Complaint.3 On August 3, 2007, counsel e-mailed Mr. Casarino, inquiring whether he would accept service of a First Amended Complaint. (Tab A at 1). Mr. Casarino never responded to this written request. On August 8, 2007, plaintiff filed his First Amended Complaint. (D.I. 11). That same day, counsel telephoned Mr. Casarino, who orally agreed to accept service of the First Amended

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He was also served by certified mail and by service on the Secretary of State. (See D.I.

9, 4). Unlike defense counsel who relies upon his plainly faulty memory for the factual sequence of events, undersigned counsel relies upon written e-mails to defense counsel (attached at Tab A), as well as contemporaneously created file memos and e-mails between plaintiff's counsel which counsel would be more than happy to present to the court for in camera review so that privilege may be preserved. 2
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Complaint, which then was served upon him by U.S. Mail. On August 30, 2007, Mr. Casarino called plaintiff's counsel, requesting a short extension of time to file an Answer to the First Amended Complaint until mid September. The extension was granted only upon condition of (1) an immediate entry of appearance, and (2) a stipulation being filed with the court regarding constitutional issues. When Mr. Casarino then refused to meet these conditions precedent, several e-mails and telephone calls soon followed. (Tab A at 23). Mr. Casarino never responded to any of these communications. On September 5, 2007, counsel e-mailed Mr. Casarino yet again and stated that plaintiff would move for a default judgment if the aforementioned entry of appearance and stipulation were not filed by the next day. (Tab A at 4). On September 6, 2007, Mr. Casarino contacted counsel by telephone and blamed his staff for his failure to live up to his agreement. He then stated that he would immediately enter his appearance in the case and comply with the agreement so that case scheduling could begin. However, this did not occur and Mr. Casarino yet again refused to live up to his agreement. More than one month later, on October 8, 2007, counsel again e-mailed Mr. Casarino, again requesting that he enter his long delayed appearance in the case. (Tab A at 6). On October 12, 2007, Mr. Casarino then entered his appearance on behalf of defendant DeLuca. (D.I. 26). However, Mr. Casarino continued to fail to live up to his earlier agreement and still did not file the stipulation regarding the Answer. B. Plaintiff Moves for Default Judgment and the Clerk Enters the Default in Appearance. In light of two months of gamesmanship by Mr. Casarino and his client's refusal to file an Answer or any other responsive pleading, despite personal service of each Complaint several months prior, plaintiff moved for a default judgment and entry of default on October 19th. 3

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(D.I. 31-32). The Clerk entered DeLuca's default in appearance on November 13th. (D.I. 43). C. Plaintiff Agrees to Lift the Default if a Deposition Is Immediately Scheduled in Delaware. During the November 14th teleconference with the Court, Mr. Casarino agreed on DeLuca's behalf to appear for an immediate deposition. Mr. Casarino: Father DeLuca is around. He's alive. He's not in good health. But he can ... be deposed fairly quickly. Mr. T. Neuberger: I'd like to address Mr. Casarino's last representation. We would agree to lift the default judgment that the Clerk has entered against Father DeLuca provided we can accept his invitation that we could depose him in the near future. We would hope in December or January that we could depose him down here. (Tab B - Transcript at 18) (double emphasis added). Thus, plaintiff accepted DeLuca's invitation to depose him "fairly quickly" and "in the near future" in exchange for lifting the default judgment. (Id.). By entering its subsequent Order, the Court acknowledged the agreement of the parties. (D.I. 47). Mr. Casarino never stated that DeLuca was unable to be deposed. Instead, he stated the direct opposite - that DeLuca "can ... be deposed fairly quickly." (Tab B at 18). No mention was ever made of any medical condition which would delay the deposition. Six days later, while flipflopping and denying that lifting the default was contingent on a prompt deposition date, Mr. Casarino again acknowledged, in writing, that DeLuca "is available for a deposition." (Tab C).4 Again, no mention was ever made of a medical condition that would delay the deposition. D. DeLuca Finally Files His Answer and Admits Sexually Abusing Plaintiff. More

Plaintiff's comprehensive response to Mr. Casarino's false claims is attached at Tab D. In keeping with his prior practice, Mr. Casarino refused to ever respond. 4

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than four months after the filing of this case, following Mr. Casarino's statement at the teleconference that he had "conferred" with his client and "I have an answer ready to go" (Tab B at 17), on November 16th, DeLuca filed his Answer (D.I. 49) in which he admitted that he sexually abused plaintiff. Specifically, DeLuca admitted that Beginning in 1968, when plaintiff was thirteen years old, DeLuca began a course of unpermitted, harmful, and offensive sexual contact upon plaintiff. (Compl. & DeLuca Ans. at ¶ 94). E. DeLuca Then Flip-Flops and Decides to Deny What He Previously Admitted. Ten days later, DeLuca flip-flopped and filed an amended Answer, somehow abruptly now denying what he had previously clearly admitted - that he had sexually abused plaintiff. (Compare D.I. 49 at ¶ 94 with D.I. 50 at ¶ 94).5 F. Plaintiff Notices DeLuca's Deposition and DeLuca Refuses to Attend. In light of DeLuca's abrupt change in his Answer the case became more complex and so , plaintiff immediately noticed his deposition for December 20 and 21, 2007. (D.I. 51). However, on December 18th, Mr. Casarino telephoned counsel and indicated that his client would not attend

That a party and his counsel would play fast and loose with the Court in this matter is disappointing, although not surprising given that DeLuca also denied in his Answer (D.I. 49-50 at ¶¶ 1,7) the previously undisputed and widely publicized fact that he was convicted by a New York criminal court of felony sexual abuse and endangering the welfare of a child (see Diocese & St. Elizabeth's Ans. D.I. 19, 23 at ¶¶ 1,7), arising out of his sexual abuse of yet another young boy. See Dingle v. Mulvee, et al., C.A.No. 07-09-025-JTV (Del.Super.) (the civil case of the young man who DeLuca sexually abused in Syracuse for many years and for which DeLuca was criminally convicted). Of course, if DeLuca had never been convicted and imprisoned, it begs the question why Mr. Casarino represented to the Court during the November 14th teleconference that his client had just been released from prison. (Tab B at 17). DeLuca noted the same in his motion for protective order. (D.I. 62 at 3). 5

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his deposition. (See D.I. 56).6 G. The Court Orders DeLuca's Attendance. After bringing DeLuca's gamesmanship to the Court's attention (D.I. 56), the Court then issued an Order compelling DeLuca's deposition on or before January 15, 2009 or a rule to show cause would issue as to why sanctions, including a default judgment, should not be entered against him. (D.I. 58). The deposition next was promptly re-noticed for January 14 and 15, 2007. (D.I. 60). H. DeLuca's Latest Delaying Tactic. On Wednesday, defendant DeLuca moved for a protective order, requesting that his deposition be indefinitely delayed because he was slightly depressed. (D.I. 62). Discussion A. Introduction. In his motion, DeLuca requests three types of relief: (1) that his deposition be postponed "until such time as Fr. DeLuca is mentally capable of being deposed;" (2) that his deposition be taken in Syracuse, New York; and (3) that if his deposition takes place in Delaware, plaintiff be forced to pay for DeLuca's travel, lodging and other expenses. (D.I. 62 at 1). Plaintiff will address these matters in turn. B. The Claim of Mental Incompetence. First, it is clear that this claim is a clear attempt at sandbagging and defense counsel sat on a letter dated December 10, 2007, for nearly one month. Why was this letter not produced earlier so that plaintiff could depose this doctor and the deposition schedule not be interrupted? Why was this December 10th letter not sent to plaintiff's counsel on December 18th when DeLuca first refused to attend his December 20th deposition?

Mr. Casarino's claim is patently false that he explained to counsel that DeLuca had been seen by a doctor, was suffering from depression and could not be deposed for that reason. 6

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Second, despite his counsel's claim DeLuca is in dire health (D.I. 62 at 3), it is notable that the only competent evidence presented - a short, conclusory letter from DeLuca's own protective family doctor - merely states that DeLuca is depressed. No mention is made of any of the other problems asserted by his counsel. Similarly, this conclusory letter also fails to articulate any harm that would befall DeLuca if he testified and there has been no showing of any medical harm that would flow from his testimony. Nor has there been any evidence that DeLuca will testify inaccurately or that his memory has been affected in any way. Moreover, the level of claimed depression is not specified. The defendant's own doctor has not even characterized it as major or chronic - a notable omission. Indeed, the level of depression is so slight it is simply being treated by an extremely low dose of an anti-anxiety medication.7 Further, plaintiff respectfully submits that a certain level of anxiety is reasonably expected as a convicted and admitted child molester begins to contemplate answering deposition questions about anally raping a young boy. Such `deposition jitters' cannot be the basis for delaying a deposition. Additionally, depression is a psychiatric diagnosis which requires analysis of the mind and human psyche. However, DeLuca's family doctor is not a psychiatrist. Instead, he practices internal medicine. He simply is not the proper individual to take the next step and make the psychiatric prognosis that a deposition would be harmful and that giving testimony should not proceed. Instead, he offers a conclusion without any foundation in medical science - such as

Counsel notes that many of his clients, in addition to being treated by much stronger types of prescription drugs, are treated by 4-5 times the dose of this particular medication and that such medication has never stood in the way of their sworn testimony. Moreover, this defense logic of disqualifying a person from testifying whenever they are being treated for anxiety or depression would disqualify a significant percentage of the U.S. population, an absurd result. 7

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symptoms from clinical examination, test results or articulated criteria found in the DSM IV manual for psychiatric disorders. This is not a case such as Schorr v. Briarwood Estates Ltd. Partnership, 178 F.R.D. 488, 492 (N.D.Ohio 1998), where a party has provided specific medical documentation of a psychological condition by a medical professional qualified to present such evidence. In Schorr, the Court noted that the party seeking protection substantiates her claim by providing specific documentation from a psychological expert in the field of Post Traumatic Stress Disorder (PTSD). This expert provides the court with specific examples of behavior he observed upon his clinical examination of Plaintiff and asserts that, based on those observations, Plaintiff indeed suffers from PTSD, and that questioning without the requested limitations may affect her mental health. Id. at 492. Given this evidence, the court finds that Plaintiff has made a specific and documented factual showing that the deposition is likely to be dangerous to her health, unless limited. Id. Conversely in our present case, all we have is a claim of a psychological condition from an individual neither qualified nor trained to make a prognosis. Even then, this short conclusion is not backed up or supported by any "specific examples of behavior ... observed upon his clinical examination" of DeLuca. Id. Thus DeLuca has simply presented no record evidence that the deposition would be dangerous to his health. The other cases cited by defendant also are clearly distinguishable. Unlike the witness in In re McCorhill Pub., Inc., 91 B.R. 223 (Bankr. S.D.N.Y. 1988), there is no evidence that DeLuca is in a "vegetative state of senile dementia." Id. at 225. Nor is there any medical evidence that DeLuca's "life will be placed in jeopardy by exposing this infirm and senile 80 year old man to a pre-trial deposition." Id. Similarly, in Medlin v. Andrew, 113 F.R.D. 650, 652 (M.D.N.C. 1987), the party submitted a letter from their trained psychiatrist, explaining that the

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party's mental state was progressively deteriorating and that a deposition would cause a mental breakdown and hospitalization. In our present case, all we have is a conclusory letter from the defendant's family doctor that DeLuca is depressed. DeLuca has simply presented no record evidence that the deposition would be dangerous to his health. Thus, defendant has failed to make a proper showing to back up his motion. Lastly, the most compelling evidence that DeLuca is able to give competent testimony without any medical risk or ramifications whatsoever comes from repeated representations by his own counsel. First, at the November 14, 2007 teleconference, Mr. Casarino represented to this Court that DeLuca "can ... be deposed fairly quickly." (Tab B at 18). Six days later, he stated the same in writing to plaintiff's counsel, noting that DeLuca "is available for a deposition." (Tab C). Finally, Mr. Casarino has repeatedly noted that if DeLuca receives an all expenses paid trip to Delaware, his slight depression would not be a bar to his deposition. (Tab C; see D.I. 62 at 1). This directly contradicts his newly discovered medical claim. C. The Deposition Should Take Place in Delaware. 1. The General Presumption Is Overcome. As the Complaint and case history thus far reveals, this is not a typical case. Plaintiff fully acknowledges the "general presumption that a defendant's deposition will be held in the district of the defendant's residence." Traynor v. Liu, 495 F.Supp.2d 444, 452 (D.Del. 2007). However, this "presumption is not a strong one and operates primarily when other factors do not favor any particular site for the depositions" Zurich Ins. Co. v. Essex Crane Rental Corp., 1991 WL 12133 at *2 (S.D.N.Y. Jan. 29, 1991). The factors to be considered in overcoming the presumption are whether plaintiff's choice of forum was effectively constrained, as well as cost, convenience and litigation efficiency. Devlin v. Transp. Comm. Int'l Union, 2000 WL 28173, at *3 (S.D.N.Y. Jan. 14, 2000). Here, these factors 9

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favor conducting the deposition in Delaware. 2. Plaintiff's Only Choice of Forum Was Delaware So the Presumption is Overcome. The "presumption loses its force in cases where the plaintiff's choice of forum is effectively constrained." Six West Retail Acquisition v. Sony Theatre Management Corp., 203 F.R.D. 98, 107 (S.D.N.Y. 2001). Here, plaintiff's only choice of forum where the Court would have jurisdiction over all necessary defendants was Delaware. Contrary to defense claims, this case could not have been brought in the New York courts (state or federal) because those courts would not have had long arm jurisdiction over the key institutional defendants - defendants Diocese and St. Elizabeth's who transferred a known child abuser to plaintiff's Delaware parish church and school where he sexually abused plaintiff for many years. As a result, plaintiff was left to rely upon the Delaware courts, where he chose to invoke the Court's diversity jurisdiction under 28 U.S.C. § 1332(a), and more importantly, the venue of the District of Delaware under 28 U.S.C. § 1391(a)(2). Accordingly, because "plaintiff's choice of forum was effectively constrained," Six West, 203 F.R.D. at 107, the presumption has been overcome. 3. As DeLuca Concedes, Litigation Efficiency Favors a Delaware Deposition. DeLuca also concedes that "for litigation efficiency, it is generally better to have depositions in the jurisdiction where the action is filed," which is Delaware. (D.I. 62 at 6). As recent experience in the sister cases in state court has revealed, in person court intervention during or immediately after the deposition of the priest perpetrator is always necessary to, among other things, resolve the numerous frivolous claims of privilege or threaten the defendant with imprisonment when he no-shows on the morning of his deposition despite written orders (and sometimes even a written opinion) of the Court to the contrary. Given the 10

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ever mounting history of acrimony in this case thus far, counsel reasonably expects that such regular court intervention also will be necessary in this case at DeLuca's deposition. Similarly, the numerous counsel for all of the parties to this case are located in Delaware. Efficiency dictates that it is better for one person to travel from Syracuse to Wilmington, than 810 persons to travel from Wilmington to Syracuse. In the same way, the relevant discovery and other documentary evidence also is located here and it may be quickly and easily accessed as the need arises during the ebb and flow of the deposition. See Devlin, 2000 WL 28173, *4 (noting that location of records to be used during the deposition are a relevant consideration). 4. It Would Cost Significantly Less for DeLuca to Come to Delaware Than for All of the Numerous Counsel to Go to Syracuse. As one court has noted, this consideration may be looked at from two perspectives: the impact that the choice of site has on total costs and the relative ability of the parties to bear expenses. Devlin, 2000 WL 28173, at *3. First, as referenced above, given that all of the attorneys for the parties are located in Wilmington, Delaware, it would be significantly less costly in total for DeLuca to come here than for all of the attorneys to go to him. Second, despite DeLuca's pleas of poverty, it is equally clear that he is better off than is plaintiff. As the Complaint makes clear, plaintiff has been on full and permanent disability status for years now, following his psychiatric diagnosis of severe Post Traumatic Stress Disorder arising from the many years of sexual abuse he suffered as a young child. (D.I. 11 at ¶ 66). Indeed, plaintiff's deteriorated mental state affecting his ability to work and earn a living is reflected in the fact that Eleventh Circuit Court of Appeals, the federal Office of Personnel

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Management and the Social Security Administration all approved his disability status. (Id.). 5. Convenience Also Weighs in Favor of a Delaware Deposition. DeLuca also complains that it would be "inconvenient" for him to travel to Delaware. (D.I. 62 at 6). Putting to the side the inconvenience plaintiff suffered when DeLuca repeatedly anally raped and otherwise violently sexually abused him over 300 times during his childhood, plaintiff notes the irony in the defense request. a. Testifying in Delaware is a Reasonably Foreseeable Consequence of Raping Young Children in Delaware. DeLuca has been duly served with legal process and is a party to a court case pending in this Delaware federal court. This case seeks to hold DeLuca accountable for anally raping plaintiff numerous times in Delaware, while DeLuca lived in Delaware and worked in Delawwre for his Delaware employers.8 That DeLuca ultimately fled the state to avoid the criminal authorities is irrelevant to whether he must answer for his actions here in Delaware. If DeLuca did not want to be "inconvenienced" by lawsuits in Delaware, he should not have anally raped young boys in Delaware. The `inconvenience' of which DeLuca complains is of his own making - he has unclean hands. "The equitable doctrine of unclean hands applies when a party seeking relief has committed an unconscionable act immediately related to the equity the party seeks in respect to the litigation." Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 174 (3d Cir. 2001). Here, DeLuca cannot now complain that he is being inconvenienced by being called to account in a Delaware court for anally raping plaintiff in Delaware when plaintiff was a young child going to school and church in Delaware. As a matter of law, the doctrine of unclean hands mandates

DeLuca was a prolific child abuser. Counsel represents at least nine other survivors of DeLuca's rape and sexual abuse, for the time frame of the 1950's to the present. 12

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that inconvenience of DeLuca's own making cannot serve as a weight in the equitable scale against taking his deposition in the same state in which he committed his crimes. Id. Contrary to defense claims, it is well recognized that "instances of defendants having to appear for depositions at the place of trial are not unusual." Financial General Bankshares, Inc. v. Lance, 80 F.R.D. 22 (D.D.C. 1978) (citing cases and treatises); see In re: Vitamin Antitrust Litig., 2001 WL 35814468, *3 (D.D.C. Sept. 11, 2001) (citing cases and noting that "there are numerous cases in which courts have ordered depositions of foreign defendants taken in the United States, rather than at the defendant's principal place of business."). b. This Deposition Has Come as No Surprise. Plaintiff has sought DeLuca's deposition since the November 14, 2007 teleconference. His deposition was duly noticed on November 26th for December 20th and 21st, only to have DeLuca refuse to appear. Following the Court's intervention and Order, on December 20th plaintiff again noticed DeLuca's deposition for January 14th and 15th, 2007. DeLuca certainly can not claim to have been surprised by the deposition notice or to have not been given enough time to appear. Additionally, given that he claims to be retired, it is equally clear that his work schedule will not be interrupted. c. The Distance is Far From Overwhelming. Syracuse, New York is a 4 ½ hour, 271 mile drive from Wilmington, Delaware. This pales in comparison to the 20 hour, 1285 mile drive that plaintiff must endure to travel up from Marathon, Florida to see his abuser face to face at this long sought deposition. Even if plaintiff was only traveling from the Eleventh Circuit in Atlanta, Georgia, it would still be a 12 1/4 hour, 757 mile trip. Even giving defendant DeLuca the benefit of the doubt regarding his fear of driving such distances, a quick web search reveals that there are both Greyhound and Trailways bus stations in Syracuse with reasonably priced buses that travel to Wilmington on a regular basis. This is far 13

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from burdensome and this light burden should not require reversal of the traditional American rule that each party bear his own expenses. Traynor, 495 F.Supp.2d at 452.9 D. To the Extent The Court Believes That The Parties Should Not Bear Their Own Costs, They Should be Borne By Defendants Diocese and/or St. Elizabeth's. As noted above, plaintiff is in his own precarious financial position. To the extent the Court believes that DeLuca should be compensated for his expenses in coming to Wilmington for his deposition, plaintiff submits that those expenses should be borne by the parties most able to bear them - the Diocese and/or St. Elizabeth's. As noted above, defendant Diocese received its first "admitted, corroborated or otherwise substantiated allegations of sexual abuse of minors" by DeLuca in 1966. (Compl. & Diocese Ans. ¶¶ 77, 43). Counsel for Diocese admitted this in sworn testimony before the Delaware General Assembly last year. (Id. at ¶ 77). Given that DeLuca was a priest/employee/teacher of these institutional defendants at the time of the abuse (and as one of the sister cases has revealed, he continues to receive a monthly pension from the Diocese for his years of dedicated service), it is not unreasonable to require them to pay DeLuca's expenses for traveling here to account for his actions while in their employ. In Terry v. Modern Woodmen of Amer., 57 F.R.D. 141 (W.D.Mo. 1972), the Court held that the deponent - an employee/agent of the corporate defendant and whose tortuous conduct To the extent the Court believes that the deposition should take place in Syracuse so as not to inconvenience DeLuca, in accordance with our District's long established precedent the Court should require DeLuca to pay the traveling expenses of plaintiff and his attorneys in journeying to that location. See Fischer & Porter Co. v. Sheffield Corp., 31 F.R.D. 534, 538 (D.Del. 1962) (requiring the defendant to pay the traveling expenses for plaintiff and his counsel when the deposition occurred in Ohio out of convenience to the defense deponent). However, if the Court ultimately concludes that plaintiff should bear the costs, either of traveling to Syracuse or of DeLuca traveling to Wilmington, plaintiff respectfully requests that the Court order that such expenses may be taxed as compensable costs at the conclusion of the case. 14
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was at crux of the plaintiff's lawsuit - was required to travel from Texas and appear in Kansas City, Missouri for his deposition by plaintiff's counsel. That federal court held that the corporate defendant was required to bear the cost because "the defendant is most able to bear the expense of the trip." Id. at 144. The same logic applies in our present case. To the extent the Court believes it is necessary to shift the expense burden, it should be borne by those parties most able to bear it - Diocese and/or St. Elizabeth's.10

Plaintiff waives an answering brief in support of this Motion. Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) RAEANN WARNER, ESQ. (#4931) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] [email protected]

ROBERT JACOBS, ESQ. (#244) THOMAS C. CRUMPLAR, ESQ. (#942) JACOBS & CRUMPLAR, P.A. Two East Seventh Street, Suite 400 Out of an abundance of caution, plaintiff briefly notes that a requirement that plaintiff conduct (from Wilmington) a telephone/video deposition of DeLuca (in Syracuse) would work a substantial hardship on plaintiff by preventing the deposition from occurring in person. The in person presence of plaintiff's counsel is necessary and required for the effective face to face confrontation which, given DeLuca's advanced age and purported poor health, may be the only method to preserve persuasive testimony if he passes away prior to trial. Additionally, such an approach would deprive plaintiff of his long sought after right to confront the man who anally raped him and sexually abused him for so many years. 15
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Dated: January 4, 2008

Wilmington, DE 19801 (302) 656-5445 [email protected] [email protected]

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Tab A

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Stephen J. Neuberger
From: Sent: To: Cc: Stephen J. Neuberger Friday, August 03, 2007 10:55 PM 'Flynn, Anthony' '[email protected]'; Thomas S. Neuberger; 'Robert Jacobs'; Thomas Crumplar

Subject: Quill v. Diocese Tony, Following up on your e-mail this morning regarding the Quill case. I have an alternative approach which I hope will address your concerns, in the near term at least. Plaintiff will be filing a First Amended Complaint on Wednesday, August 8th. With the resetting of the 20 day response deadline, please let me know if this will give you the immediate relief you need. Steve Casarino - I know you and Tom N. spoke earlier this week. Will you accept service of the First Amended Complaint on Rev. DeLuca's behalf? -Steve ********************************** Stephen J. Neuberger, Esq. The Neuberger Firm Attorneys and Counsellors at Law Two East Seventh Street, Suite 302 Wilmington, DE 19801-3707 Phone: 302-655-0582 Fax: 302-655-9329 E-Mail: [email protected]

1/4/2008

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Stephen J. Neuberger
From: Sent: To: Cc: Thomas S. Neuberger Tuesday, September 04, 2007 9:12 AM Sterphen P. Casarino Esq. ([email protected]) Cheryl A. Hertzog, Esq.; Raeann Warner, Esq.; Stephen J. Neuberger (work); Thomas Stephen Neuberger, Esq.

Subject: Quill v. DeLuca et al Steve, I hope you had a nice weekend. Please send over today the stipulation we discussed on August 30th in this case. Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

1/4/2008

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Stephen J. Neuberger
From: Sent: To: Cc: Subject: Thomas S. Neuberger Wednesday, September 05, 2007 3:03 PM Thomas S. Neuberger; Sterphen P. Casarino Esq. ([email protected]) Cheryl A. Hertzog, Esq.; Raeann Warner, Esq.; Stephen J. Neuberger (work); Thomas Stephen Neuberger, Esq.; Thomas C. Crumplar, Esq.; Robert Jacobs urgent RE: Quill v. DeLuca et al

Importance: High Steve, Why have you not gotten back to me with a stipulation? You or your staff must do so by tomorrow. This is federal court. Otherwise I will have to move for a default. Are you in trial, do you not have staff? Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected] From: Thomas S. Neuberger Sent: Tuesday, September 04, 2007 9:12 AM To: Sterphen P. Casarino Esq. ([email protected]) Cc: Cheryl A. Hertzog, Esq.; Raeann Warner, Esq.; Stephen J. Neuberger (work); Thomas Stephen Neuberger, Esq. Subject: Quill v. DeLuca et al Steve, I hope you had a nice weekend. Please send over today the stipulation we discussed on August 30th in this case. Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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Stephen J. Neuberger
From: Sent: To: Cc: Thomas S. Neuberger Wednesday, September 05, 2007 4:50 PM Thomas S. Neuberger; 'Sterphen P. Casarino Esq. ([email protected])' Cheryl Hertzog; Raeann Warner; Stephen J. Neuberger; Thomas S. Neuberger; Thomas C. Crumplar, Esq.; Robert Jacobs

Subject: RE: urgent RE: Quill v. DeLuca et al Steve, I have just reviewed a pleading Mark Reardon filed with the court yesterday. In it he takes the position that since there has been no entry of appearance by an attorney for defendant DeLuca the court should delay scheduling issues for the entire case. I cannot allow such prejudice to accrue to my client. So please by 9am tomorrow file an entry of appearance in this case. Otherwise, after 9am I will file papers seeking a default in the case against DeLuca and that will remove the prejudice accruing to my client by Reardon's claims and the fact no entry of appearance has been filed. Sorry to have to force this issue, but your delay in preparing the stipulation we discussed, your failure to respond to my emails, and Reardon's official position leaves me with no choice. Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected] From: Thomas S. Neuberger Sent: Wednesday, September 05, 2007 3:03 PM To: Thomas S. Neuberger; Sterphen P. Casarino Esq. ([email protected]) Cc: Cheryl A. Hertzog, Esq.; Raeann Warner, Esq.; Stephen J. Neuberger (work); Thomas Stephen Neuberger, Esq.; Thomas C. Crumplar, Esq.; Robert Jacobs Subject: urgent RE: Quill v. DeLuca et al Importance: High Steve, Why have you not gotten back to me with a stipulation? You or your staff must do so by tomorrow. This is federal court. Otherwise I will have to move for a default. Are you in trial, do you not have staff? Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm

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Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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From: Thomas S. Neuberger Sent: Tuesday, September 04, 2007 9:12 AM To: Sterphen P. Casarino Esq. ([email protected]) Cc: Cheryl A. Hertzog, Esq.; Raeann Warner, Esq.; Stephen J. Neuberger (work); Thomas Stephen Neuberger, Esq. Subject: Quill v. DeLuca et al Steve, I hope you had a nice weekend. Please send over today the stipulation we discussed on August 30th in this case. Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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Stephen J. Neuberger
From: Sent: To: Thomas S. Neuberger Monday, October 08, 2007 1:30 PM Sterphen P. Casarino Esq. ([email protected])

Subject: Quill v. DeLuca Steve, Please immediately enter your appearance in this case. I believe the lack of your entry is delaying the judge in scheduling it. Thanks. Tom **************************************** Thomas S. Neuberger, Esquire The Neuberger Firm Attorneys And Counsellors At Law Two East Seventh Street, Suite 302 Wilmington, Delaware 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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Tab B

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE - - -

ROBERT QUILL, 5 Plaintiff, 6 vs. 7 8 9 10 11 12 13 14 15 Defendants. CATHOLIC DIOCES OF WILMINGTON, INC., a Delaware corporation; ST. ELIZABETH'S CATHOLIC CHURCH, a Delaware corporation; Rev. FRANCIS G. DELUCA, individually and in his official capacity; and Rev. MICHAEL A. SALTARELLI, in his official capacity,

: : : : : : : : : : : : : : : : : : : :

CIVIL ACTION

NO. 07-435 (SLR)

- - 16 17 18 19 - - 20 BEFORE: 21 - - 22 23 24 25 Valerie J. Gunning Official Court Reporter HONORABLE SUE L. ROBINSON, U.S.D.C.J. Wilmington, Delaware Wednesday, November 14, 2007 8:35 o'clock, a.m. *** Telephone conference

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APPEARANCES:

THE NEUBERGER FIRM BY: THOMAS S. NEUBERGER, ESQ. and STEPHEN J. NEUBERGER, ESQ.

-and6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Counsel for Defendant St. Elizabeth's Catholic Church ELZUFON AUSTIN REARDON TARLOV & MONDELL BY: MARK REARDON, ESQ. Counsel for Defendants Catholic Diocese of Wilmington, Inc. and Michael A. Saltarelli YOUNG, CONAWAY, STARGATT & TAYLOR LLP BY: ANTHONY G. FLYNN, ESQ. and. NEILLI M. WALSH, ESQ. Counsel for Plaintiff JACOBS & CRUMPLAR, P.A. BY: THOMAS C. CRUMPLAR, ESQ.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good morning, counsel. This is (REPORTER'S NOTE: The following telephone P R O C E E D I N G S

conference was held in chambers, beginning at 8:35 a.m.)

Judge Robinson, and Valerie is actually here as a Court Reporter. I don't generally have Court Reporters at scheduling conferences, but this case is already messy, and with pending motions, I thought it might be helpful to put you all on the record. You need to identify yourselves each time you speak so that our record is clear, because there are lots of people on the phone. So I think -- you all are there; right? (Counsel respond, "Good morning, your Honor.") THE COURT: All right. Good.

It seems like there are a couple of issues that we need to get under control so that we can process this case fairly to everyone involved. One is the question of whether there are truly motions that involve legal issues that do not involve any issues of fact that could be disputed and whether those

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should be resolved.

In the meantime, whether the plaintiff

has cause for expediting the final resolution of this case and putting the defendants to the task of a foreshortened discovery period and perhaps to get to trial. So those are the two things that I'm dealing with in trying to reach a fair resolution here. So let's address the first question, and that is whether there are legal issues, potentially dispositive legal issues, that do not involve disputed issues of fact that should be addressed by the Court sooner rather than later. I will start with plaintiff's counsel and then have defendants' counsel respond. MR. T. NEUBERGER: was attached to the -THE COURT: Mr. Neuberger, I know who you are, Your Honor, in Tab A, which

but for purposes of the record -MR. T. NEUBERGER: Neuberger, for the plaintiff. Your Honor, I was saying in Tab A, which is attached to the scheduling order that we sent over yesterday, our pleading in this regard is found. The defendants, in their answer, have defended on the grounds of the Act, the Child Victims Act, which was enacted on July 11th, I think, of this year, is I apologize. This is Tom

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unconstitutional as written and as applied. We move for judgment on the pleadings under Rule 12(c) on the issue of the act being unconstitutional as written. I represent nine other -- eight other victims of,

alleged victims of Father DeLuca as well as more than 30 individuals under the Act to have claims that can either be filed in diversity or in the State courts. A judgment, a ruling as to whether the act is constitutional under the federal Constitution would advance the resolution of all of those cases as well as save people enormous expense and emotional energy if the act were found to be unconstitutional. For the reasons stated in my memo,

Rule 12(c) is the appropriate vehicle to decide such constitutional questions. The defendants are taking the position that the as-written issue should be conflated with the as-applied issue and saved for the end of the case. As I've tried to indicate, they've taken the exact opposite position in State Court, in Naval Commander Ken Whitwell's case, which was filed immediately after this case. That case is in front of Judge Young, and if you

would look at Tab A and Exhibit A to Tab A, you would find the same defendants' letter to Judge Young, where they ask Judge Young to stay discovery and have moved to declare the act unconstitutional under both the Federal and State

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Constitutions. They seem to be engaging in forum-shopping there. Judge Young has ordered discovery to go forward,

but the briefing to be done at the same time, and I think their opening brief is due next week, before Thanksgiving. We filed our brief on October 15th, and. under the rules, the defense brief was due on October 31st, I believe. They filed an emergency motion to stay the Among ourselves, we had given

resolution of that issue.

them an extension to November 9th to file their brief, and if the Court rules that this briefing should go forward because of the importance of the constitutional issues and it is an efficient way of handling constitutional litigation, I suggest that their brief -- their answering brief be filed on November 19th, and because of the Thanksgiving holiday, that our brief be filed on November 30th, our reply brief on November 30th, 11 days later. In all of these cases throughout the United States, when these types of cases come up, the constitutional issue has to be resolved. An as-written

challenge is appropriate, and I believe my client, who sued in diversity and was a supervisory staff attorney in the federal court system in the Eleventh Circuit, he is

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asserting his right to have a federal forum decide the constitutionality of the federal questions in this case and I think it's appropriate at the beginning of the case, because of the public importance of a case, that the issue be resolved. And so we hope that it's taken under

advisement and in due course the Court would rule on the constitutional issue, and then we can engage in discovery simultaneously with that. That's all I need to say, your Honor. THE COURT: All right. Thank you.

Do any other of the plaintiff's lawyers want to add to that or should I move to the defendants? MR. T. NEUBERGER: defendants. THE COURT: All right. Let's hear a response No. You can just move to the

from the defendants, particularly with respect to the different postures you all seem to be taking in the different cases. MR. FLYNN: Good morning, your Honor. Anthony

Flynn, on behalf of the defendants, Diocese of Wilmington and Bishop Saltarelli. Your Honor, first of all, St. Elizabeth's and Father DeLuca are the parties in the State Court to the Whitwell case. Furthermore, Mr. Neuberger is incorrect. The

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defendant Diocese has not moved to dismiss not only the Whitwell case but any other case based on the constitutional ground. so. Other defendants in the Whitwell case have done

We have filed a motion to dismiss based only on the

res judicata effect of the prior judgment in the federal court Whitwell case. And far from the defendants

forum-shopping on this issue, it was the plaintiff who chose not to refile the Whitwell case in State Court. Nevertheless, the constitutional issue is certainly one that the Court is going to need to address, but it is a four-pronged fact-bound analysis in our view, which is why we did not file a motion to dismiss on that ground in the State Court case in Whitwell. In addition to the analysis under both the U.S. and Delaware Constitutions, as to the facial constitutionality or unconstitutionality of the statute, a second level of analysis is whether as applied in the facts and circumstances of a given case, the statute would work (inaudible) of due process to the defendants because of the age of the case and for other reasons. Our view, that issue -- we very likely will raise that issue, but only after there's a factual record in the case, and to us, it seems inappropriate and certainly a waste of the Court's time to be wrestling in the abstract

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with the constitutional issue without hearing the whole issue. The motion for judgment on the pleadings

raises only one of the four issues that the Court is going to need to address to deal with the constitutional issue. So on the constitutional question, we think that that is an issue that should be reserved for the time the Court sets aside for dispositive motions. There is another pending motion, our motion to dismiss the case on jurisdictional grounds. fact intensive. brief. That is not

Plaintiffs have filed their answering

Our reply brief was stayed by your Honor's order,

but that is an issue we have raised, frankly, simply because the statute is clear: That jurisdiction over revived barred

claims is only in Superior Court and it's just an issue that needs to be resolved at the outset of this case one way or the other, which is why we raise it now. THE COURT: And with respect to the

constitutional issue, you believe that no matter which decision I come to on the issue raised by plaintiff's brief, that it cannot be dispositive and it cannot help the case as it moves forward? MR. FLYNN: Yes, that's correct, your Honor. We

believe that you will not be able to resolve the -- all of the -- all of the aspects of the constitutional issue based

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on plaintiff's motion. THE COURT: All right. Well, I am not going to

make a decision right at the moment about briefing of all of these things. MR. T. NEUBERGER: I'm sorry, your Honor.

Are we going to hear from St. Elizabeth's and I could reply? This is Tom Neuberger, your Honor. THE COURT: hear -- well, all right. MR. T. NEUBERGER: THE COURT: MR. REARDON: your Honor. We adopt and support wholly Mr. Flynn's comments. MR. CASARINO: And this is Stephen Casarino. That's okay. Well, all right. Actually, before I

Any one of the other defendants? Mark Reardon, for St. Elizabeth's,

I do the same, your Honor. MR. T. NEUBERGER: Thank you, your Honor. Might

Your Honor, this is Tom Neuberger again. I briefly reply? THE COURT: If possible, yes. Yes, your Honor.

MR. T. NEUBERGER:

There's a

joint defense in State Court, Commander Whitwell's case. The Archdiocese of Philadelphia's lawyers are down here

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defending the Norbertine religious order, et cetera, et cetera. They're working in tandem. The letter, which is

attached at Tab A of October 17th, 2007, makes it very clear that the Catholic Diocese is adopting the position on the constitutionality of Section 81, 8145. For them

to say that they have -- they are not seeking the benefit of that litigation tactic is a misstatement. We have

not forum-shopped with Commander Whitwell's action in State Court, which could have been filed in Federal Court. I think the Court may remember during the pretrial conference for Commander Whitwell's case that we had agreed in discussions with the Court that should the Act pass, that this Court would not have to revisit Commander Whitwell's case and that we would file it in State Court. So we are simply following up on our

assurance to the Court at that time earlier -- earlier in the year. If the case -- if the act is unconstitutional, then the case is over, your Honor. point. I mean, that's the whole

This case is over, not eight other victims of DeLuca

are over, and the 30 other victims that I represent are over. There are no -- there are no fact-driven issues as to the constitutionality of the Act as written. We're

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not talking about an -- an as-applied challenge.

Their

position has always been that as applied, there can be due process problems because evidence has been destroyed or lost due to the passage of time. vehicle for that. This case will not be the He's 78

Defendant DeLuca is still alive.

years old and should be getting out of prison any day now in Syracuse, New York, so there's no problem with that. We're

in the process of exchanging an enormous volume of Rule 26 documents backing up our case and our allegations: Photographs, handwritten love notes from DeLuca to my client, et cetera, et cetera. Those kinds of fact-driven issues will not be in this case at the end of discovery that would provide the basis for an as-applied challenge. But if they want to make

one at that time, at summary judgment, you know, they can. But right now, we're trying to find out if this whole group of cases can go forward, if the legislature was within its prerogatives to enact health and safety legislation in this regard, and there are three areas of the case law: case law that get addressed here. Federal

Equal protection, et

cetera, et cetera, and those are in the briefs, Tab C, in front of your Honor. So we think it is appropriate and certainly of assistance to the citizens of the State of Delaware, who are trying to draw the benefit of this act to in due course rule

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at the beginning of this case on the constitutional question. THE COURT: that aside. All right. Well, let me set all

I'm not -- well, without reading all of the

briefs, which, of course, I haven't, I'm not sure I understand the defendants' argument that briefing would basically waste my time, so I'm not sure I can make a decision about that. But let's move to perhaps the more complicated, more complicated, if possible, issue, and that is the plaintiff's request that this case somehow be expedited and to get this case to a trial. And part of that, of course,

is whether I have time to try this on an expedited basis, and the other issue is whether we can't expedite the matter, to some extent, without harming the defendants' right to full discovery and full briefing on all the issues that require briefing. So I certainly know your position on this, Mr. Neuberger. first. MR. FLYNN: Thank you, your Honor. Again, Let me hear from defendants on this issue

it's Anthony Flynn, on behalf of defendants Diocese and Bishop. Your Honor, the schedule that we have proposed is, we would think, a typical scheduling, and your Honor

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certainly knows what a typical schedule in your cases is. This case involves facts that are 40 years old. It is going to take a tremendous amount of effort to

first identify who are witnesses with relevant knowledge, track them down and then to interview, and, if necessary, depose them. We think that -- we're not asking for an undue amount of time. We're asking for the normal amount of time

that one would require to discover a case, particularly one of this nature. We undoubtedly are going to identify in

depositions, for example, other witnesses that are going to need to be pursued and their depositions taken or at least them being interviewed. With respect to the plaintiffs, one other thing about discovery. I apologize.

The plaintiff has identified in his initial disclosures 11 witnesses by name and unspecified number of other witnesses. In addition to that, there are three

expert -- experts identified by name and two others by category. So we're talking, at a minimum, about more than a

dozen depositions only of the witnesses that plaintiff has identified as well as all the expert discovery. That just

can't be done in a highly expedited way, particularly given the extreme aiming of the facts of this case, the underlying

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circumstances of this case. With respect to plaintiff's health problems, first, I have to say it's entirely unclear that they are based upon what the submissions are, but -- and I would note in this regard that Mr. Quill has been well enough in recent months to come to Delaware on at least four occasions, testify before the General Assembly in support of the legislation that enables the suit, also to come to Delaware to participate in a press conference regarding his lawsuit and to work with his counsel, actively with his counsel in preparing his case. But if his health is really a problem and preserving his testimony is crucial, we're certainly more than willing to work with plaintiff's counsel once we have this volume of documents that Mr. Neuberger has referred to, to take his deposition very promptly, so that his testimony is preserved. There is a theme in plaintiff's response in their order that, you know, this is a strategy of delay by defendants, but I want to point out a couple of things. One is, we filed a motion to dismiss on jurisdictional grounds, but we answered the complaint. We

did not seek in this case to stay discovery, for example, pending resolution of that motion, and, indeed, we have agreed with plaintiff to make a preliminary production of

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documents, Father DeLuca's personnel file, by the end of this month, before we received a request for production, formal request. So in our view, we need to have a schedule that allows for the defendants to adequately investigate and discover the case, but equally as important, to allow the Court to resolve that, not just the constitutional issues, but the other novel questions under Delaware law regarding the scope of fiduciary duties and quasi-contractual theories that are set forth in plaintiff's complaint. The Court is

going to need time not only to brief, but to hear argument, and to consider those issues before we get this case in a posture for trial. THE COURT: And before we go back to plaintiff's

counsel or any other defendant's counsel, describe for me again what kind of discovery we're looking at, because in my more complex cases, it's the document discovery that takes months and months and months, because there's an exchange of millions of pages of documents. In this case, my impression I mean, the But

is that it isn't particularly document-heavy.

plaintiff has his documents and they should be ready.

it is basically tracking down witnesses and deposing them. Do I have a correct impression? MR. FLYNN: Diocese and the Bishop. Again, Tony Flynn, on behalf of

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That's partially correct, your Honor. Certainly, the search for sentient witnesses is going to be a critical part of the case. The proposed order, comment to The

both orders, is the list of the areas of discovery. plaintiff has identified 13 areas of discovery. identified another 13 and St. Elizabeth's five. under way a search for documents.

We've There is

A problem we're going to It

have, of course, is finding them, given the age of them. will be more the search for them, I think, rather than actual production and review of them that will be the problem, but you're right to say that the location of and deposing of witnesses is going to be extremely time-consuming, much more so I think than in a typical case. THE COURT: All right. Anyone else from the

defendants' side before I go back to Mr. Neuberger? MR. CASARINO: Your Honor, Steve Casarino.

I'm not sure if this is the time to talk about it or I can wait until a little later, but the Court may realize that a default judgment has been entered against Father DeLuca, and I think it properly -- I'm going to ask Tom if he'll waive that. Father DeLuca is out of jail now. I have conferred with him

He got out about two weeks ago.

last Saturday and I have an answer ready to go. I was going to file a motion to open the

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default, but I thought the Court had stayed everything, so I figured I'd wait until this conference. Father DeLuca is around. in good health. He's alive. He's not

But he can -- he can be deposed fairly

quickly, but otherwise I take the position of the other defendants, that we do need some time to explore the plaintiff's case and depose witnesses. MR. T. NEUBERGER: Neuberger. If I could, I'd like to address Mr. Casarino's last representation. We would agree to lift the default Your Honor, this is Tom

judgment that the Clerk has entered against Father DeLuca provided we can accept his invitation that we could depose him in the near future. We would hope in December or in

January that we could depose him down here and then we'd just hope that -- well, we would expect that Mr. Casarino would produce any Rule 26 documents shortly before the deposition. And then, lastly, that our lifting the default, we would -- we would hope that that would not affect the status of the issue of should we go forward on the Rule 12, 12(c) briefing. Okay?

So Mr. Casarino and I have been -- have been in touch about this, and as long as we can get his deposition, we're fine with that.

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Now, your Honor, if I could go back to the question of expediting the case, immediately after it was filed on July 12th, I've been in communication with the defendants and in an attempt to put in place a six-month discovery schedule, which is certainly reasonable and within the parameters of discovery schedules used in this court that would have expired on February 28th. Okay. So that

would have given them six months and instead all we got were motions for extensions and things like that, and now we're four months down the line from July 12th and they want basically a 12 to 13-month discovery plan contending, in effect, this is a complex case. Our position is it is not a complex case. of all, it is not a document-heavy case. First

Usually in these

cases, there are three or four documents, a few photos or pictures. We have boxes of -- a box of pictures and even a

portrait from an artist in town, and we've got cards and things like that. over. But it's all stuff we're ready to turn We've

We've been busily scanning it this month.

already shared with them a four-page summary of the expert report of our main expert. They also know what the conclusions are of our forensic psychiatrist, Dr. Tavani. There are no complicated We'll have to use

issues relating to experts in this case.

an economist to run numbers on the loss of his -- of my

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client's federal pension with the judiciary and seven to ten years of wage loss. We have told them we will use a vocational expert to say that had he not been abused, he would have been not just a federal supervisory staff attorney, but a white-shoe lawyer in a prominent firm in Atlanta, and that affected his earnings, none of which are complicated or abnormal or I don't think present Daubert issues. In fact,

our expert, Father Doyle, testified nationally in these cases and defendants should have a fair amount of experience with him. On the witnesses, your Honor, basically, we had two categories of witnesses. My client -- I believe one may Yes, he does have, you If they want DeLuca himself,

have been his brother, a sister.

know, four or five brothers and sisters. to go out and depose them, that's fine.

maybe the present pastor of a church on their recordkeeping, Father Seeney (phonetic), the number two person in the Diocese, who, you know, retired DeLuca, let's say, in 1993, and would be the person most familiar with his -- his record here. There are no unusual issues of surprise here. They had foreknowledge. Mr. Flynn testified in front

of the General Assembly that as far back as 1966, the Diocese had received complaints about DeLuca. Our abuse

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does not start until '68, so their duty, their duty to protect is clear. That's the universe of fact witnesses about what happened. All this stuff about going out and, you know,

finding other staffers and everything else, they've only identified, I think, one witness in their Rule 26 disclosures from their side. identified anybody. And then we had some damages witnesses. You know, the Chief Judge down there in the Eleventh Circuit, the prior Chief Judge. You know, people who work Okay. They have not

with my client and one other or two other staff attorneys on the, you know, on the issue of, you know, his skills as a lawyer and the fact that he could have been a white-shoe lawyer. All these are things that can be done in six months, your Honor. Okay. All these are things that could We're willing to clear our -We've

be done on a rocket docket.

our schedules and move this -- move this case along.

been willing to do it since July 12th, move it along on a six-month time frame. There's nothing here that indicates

that this is really a complex case. Now, on the reason for expediting it, your Honor, I was burned in another case in this court where, in a telephone conference like this that the Court ordered

Case 1:07-cv-00435-SLR

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Filed 01/04/2008

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under seal, and I will be asking that this conference be put under seal if we talk about these health issues, but I had to raise up my life-threatening brain tumor, and no sooner than it went out to three sets of lawyers in this sealed thing, that I'm getting calls from the News Journal and reports on my health conditions, you know, that I've had to deal with since 2003. You know, that were circulating Okay.

throughout the State of Delaware.

My client, as I have said in the sealed papers, is suffering from tw