TITLE 10

Courts and Judicial Procedure

Procedure

CHAPTER 43. EVIDENCE AND WITNESSES

Subchapter I. General Provisions


If any person, duly summoned by process to attend as a witness before any court, justice of the peace, or other officer, lawfully authorized to issue the same, without reasonable excuse, fails to attend, according to the direction of such process; or attending refuses to testify when required by such court, justice of the peace, or other officer, such person shall be liable to the aggrieved party for all damages occasioned by such failure or refusal, to be recovered in a civil action.

Code 1852, § 2338; Code 1915, § 4211; Code 1935, § 4686; 10 Del. C. 1953, § 4301; 70 Del. Laws, c. 186, § 1.;

No child under the age of 10 years may be excluded from giving testimony for the sole reason that such child does not understand the obligation of an oath. Such child's age and degree of understanding of the obligation of an oath may be considered by the trier of fact in judging the child's credibility.

65 Del. Laws, c. 111, § 1.;

Repealed by 63 Del. Laws, c. 62, § 1, effective June 30, 1981.;

(a) Short title. — This section may be cited as the "Delaware Uniform Interstate Depositions and Discovery Act."

(b) Definitions. — In this section:

(1) "Foreign jurisdiction" means a state other than Delaware.

(2) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction.

(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(4) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(5) "Subpoena" means a document, however denominated, issued under authority of court of record requiring a person to:

a. Attend and give testimony at a deposition;

b. Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

c. Permit inspection of premises under the control of the person.

(c) Issuance of a subpoena.

(1) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to the prothonotary in the county in which discovery is sought to be conducted in this State. A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this State.

(2) When a party submits a foreign subpoena to a prothonotary in this State, the prothonotary, in accordance with the court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.

(3) A subpoena issued under paragraph (c)(2) of this section must:

a. Incorporate the terms used in the foreign subpoena; and

b. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

(d) Service of subpoena. — A subpoena issued by a prothonotary under subsection (c) of this section must be served in compliance with this title and applicable Superior Court Rules for service of subpoena.

(e) Deposition, production, and inspection. — This title and applicable court rules of this State applicable to compliance with subpoenas to attend and give testimony, produce designated books, documents, records, electronically stored information, or tangible things, or permit inspection of premises apply to subpoenas issued pursuant to subsection (c) of this section.

(f) Application to Court. — An application to the Superior Court for a protective order or to enforce, quash, or modify a subpoena issued by the prothonotary under subsection (c) of this section must comply with the rules or statutes of this State and be submitted to the Superior Court in the county in which discovery is to be conducted.

(g) Uniformity of application and construction. — In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(h) Application to pending actions. — This section applies to requests for discovery in cases pending on the effective date of this section [July 12, 2010].

(i) Effective date. — This section takes effect upon enactment [July 12, 2010].

Code 1915, § 4238A; 30 Del. Laws, c. 230; 33 Del. Laws, c. 235; Code 1935, § 4707; 46 Del. Laws, c. 256; 47 Del. Laws, c. 117; 70 Del. Laws, c. 186, § 1; 77 Del. Laws, c. 374, § 1.;

Repealed by 63 Del. Laws, c. 62, § 1, effective June 30, 1981.;

No advance payment or partial payment of damages made by any person or his or her insurer as an accommodation to an injured person or on such person's behalf to others or to the estate or dependents of a deceased person, made under liability insurance as defined in § 906(a)(2) of Title 18, because of an injury or death claim or potential claim against any person or insured thereunder shall be construed as an admission of liability by the person claimed against, or of the insurer's recognition of such liability, with respect to such injured or deceased person or with respect to any other claim arising from the same accident or event. Any such payments shall, however, constitute a credit and be deductible from any final settlement made or judgment rendered with respect to such injured or deceased person which does not expressly take into account such advance payments. Any person, including any insurer, who makes such an advance or partial payment, shall at the time of the payment notify the recipient in writing of the statute of limitations applicable to such injury or death. Failure to provide such written notice shall operate to toll any applicable statute of limitations or time limitations from the time of such advance or partial payment until such written notice is actually given.

10 Del. C. 1953, § 4318; 57 Del. Laws, c. 442; 70 Del. Laws, c. 186, § 1.;

(a) For purposes of this section:

(1) "Health care provider" means any person licensed or certified by the State of Delaware to deliver health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employee or agent of such person acting in the course and scope of employment or agency related to health care services.

(2) "Unanticipated outcome" means the result of a medical treatment or procedure that differs from an expected medical result.

(b) Any and all statements, writings, gestures, or affirmations made by a health care provider or an employee of a health care provider that express apology (other than an expression or admission of liability or fault), sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care, that is made to the person, the person's family, or a friend of the person or of the person's family, with the exception of the admission of liability or fault, are inadmissible in a civil action that is brought against a health care provider.

75 Del. Laws, c. 413, § 1.;

(a) For purposes of this section:

(1) "Critical incident" means a situation or incident which, during the course of his or her duties, causes, or may cause, a first responder to experience unusually strong negative emotional or physical stress. "Critical incident" includes, but is not limited to, any encounter which may result in the death of or serious injury to another person or the imminent potential of such death or serious bodily injury, fatal motor vehicle accidents, child abuse investigations, death investigations and large scale man-made or natural disasters.

(2) "Critical incident stress management services" means consultation, risk assessment, education, intervention, and other crisis intervention services provided by a critical incident stress management team to a first responder prior to, during or after a critical incident.

(3) "Critical incident stress management team" or "CISM team" means a team composed of members of a state, county or municipal law-enforcement, fire or emergency medical agency that is trained, in accordance with standards established by a nationally accredited critical incident stress management organization or network and recognized by the Council on Police Training, to assist and provide support to a first responder who has been involved in a critical incident that may affect, or has affected, the person's work performance or general well-being.

(4) "Critical incident stress management team member" means an individual who is specially trained to provide critical incident stress management services and meets the requirements of a nationally accredited critical incident stress management organization or network which has been recognized by the Council on Police Training and has been approved by the Colonel or Chief of the police, fire or emergency medical services agency of which the individual is a member and has been approved to function as a CISM team member prior to and at the time the counseling takes place.

(5) "First responders" shall mean federal, state and local law-enforcement officers, fire, and emergency medical services personnel, hazardous materials response team members, 911 dispatchers, or any individual who is responsible for the protection and preservation of life, property, and evidence, and has been sent or directed to respond to a request for assistance as a result of a critical incident.

(6) "Law-enforcement officer" means a police officer as defined in § 9200 of Title 11.

(7) "Participant" means an individual who participates either in a group or individual critical incident stress management team service.

(b) Except as provided in subsection (d) of this section, all proceedings, communications and records, including, but not limited to, any information acquired by a critical incident stress management team, or critical incident management stress management team member, from a first responder who has, or is obtaining, assistance from the team, or team member, is confidential and is not subject to disclosure through compulsory legal process or otherwise discoverable or admissible in evidence in any action, including but not limited to, any legal proceeding, trial or investigation unless the confidentiality is waived by the affected first responder.

(c) Except as provided under subsection (d) of this section, a CISM team member who is conducting a critical incident stress management counseling service and informs the participant and/or first responder that the service is being conducted pursuant to the provisions in this section, shall not be compelled to disclose any communications made by the affected first responder in any action, including, but not limited to, any legal proceeding, trial or investigation, without the consent of the affected first responder.

(d) Exceptions. — The privileges established under subsections (b) and (c) of this section are not applicable if:

(1) The communication indicates an intent to engage in conduct likely to result in imminent death or serious physical injury to the first responder who received critical incident stress management services or another individual;

(2) The first responder who obtained critical incident stress management services expressly waives the privilege or gives consent to disclosure of the privileged communication;

(3) The first responder who obtained critical incident stress management services is deceased and the surviving spouse or the executor or administrator of the estate of the deceased first responder expressly waives the privilege or gives consent to disclosure of the privileged communications;

(4) The first responder who received critical incident stress management services sought or obtained the services to enable or aid anyone to commit or plan to commit what the first responder who received critical incident stress management services knew, or reasonably should have known, was a crime or fraud or mental or physical injury to the first responder who received critical incident stress management services or another individual.

(e) Information otherwise available from the original source shall not be immune from discovery or use in any civil or criminal action merely because the information was presented at a time the first responder obtained critical incident stress management services if the testimony sought is otherwise permissible and discoverable.

78 Del. Laws, c. 236, § 1; 70 Del. Laws, c. 186, § 1.;