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Here’s an odd legal footnote to the sad, strange story of John Eleuthère “Eagle” du Pont—heir to the famous family’s chemical company fortune, declared paranoid schizophrenic, convicted murderer of Olympic wrestler Dave Schultz, and 72-year-old inmate in a minimum security prison who could be eligible for parole this year.
Mark Anthony DeHaven, one of the former members of a wrestling team that John created, funded and housed at his sprawling estate in suburban Philadelphia, has lost his bid to have the record of John’s incapacity proceedings (including his trust documents) unsealed.
Mark, who never filed actions against either John or the trust, said he just needed access to John’s trust documents to prove his claim that John had promised Mark would never have to worry about health care or retirement because John had established a trust for him.
A lower court denied the request and offered to view the record in camera. If there was any mention of Mark and a trust for him, that information could be turned over to Mark and his counsel.
A judge’s willingness to spend time doing an in camera review should not be dismissed lightly. Indeed, there are a variety of instances in estate and fiduciary litigation when the parties might want to try to persuade a trial judge to conduct an in camera review of sealed or privileged documents.
But refuse the court’s generous offer is exactly what Mark did.
Instead, he appealed to the Pennsylvania Superior Court. In that appeal, Mark argued that there is a public right of access to judicial proceedings and records, and the burden is on the party seeking to seal the records to overcome the presumption of access.
The appellate court agreed about this presumption—but noted that the rule has limitations: The record may be sealed to protect private interests or the privacy and reputation of innocent parties. And the court found Pennsylvania statutory law recognizes that proceedings to declare individuals as incapacitated authorize the court to close the hearing to the public. Estate of du Pont, 966 A.2d 6636 (Pa. Super. Feb. 12, 2009)
In September of 1996, nine months after John had shot his friend Dave Schultz dead in front of witnesses and locked himself in his mansion for a two-day standoff with arresting officers, John’s family filed incapacitation proceedings to preserve his significant assets. At the family’s request, the court sealed the record of that proceeding for privacy regarding the extensive detail of John’s physical and mental health, as well as his financial affairs.
John graduated from The Haverford School in 1957, then received a bachelor of science in zoology from the University of Miami in 1965 and, in 1973, a doctorate in natural science from Villanova University. He’s credited with discovering two dozen species of birds. He founded the Delaware Museum of Natural History, which opened to the public in 1972, and served as its director for a number of years. 1
John also was an accomplished athlete known for bringing triathlon competition to the United States and for creating in the late 1980s a state-of-the-art sports training facility at his estate, Foxcatcher Farms in Newton Square, Pa., for wrestlers, swimmers and pentathletes. He largely funded a new basketball arena at Villanova University, which opened in 1986. 2
But in this fairy-tale life, there were many signs of trouble and instability. John’s ex-wife Gale Wenk du Pont filed a civil suit in 1985 alleging that he had threatened her with a knife and a gun and had tried to push her out of a moving car. 3
Experts at John’s trial for murder testified that he was a paranoid schizophrenic who believed Dave Schultz was part of a conspiracy to kill him. 4
In February 1997, a jury found John guilty of third-degree murder but mentally ill. His sentence was 13-to-30 years, which could mean he’s eligible for parole this year. He’s currently housed at the State Correctional Facility—Mercer, a minimum-security institution in the Pennsylvania prison system. 5
The Appeals Decision
The appeals court hearing Mark’s claim noted that it was one of first impression in Pennsylvania as Mark was seeking to unseal a record. All prior cases had dealt with whether a trial court had properly sealed a record.
The court analogized the issues in Mark’s case to a Pennsylvania case, F.D.I.C. v. Ernst & Ernst, 677 F.2d 230 (2dCir. 1982) holding that, once a confidentiality order was entered to seal the terms of a prior settlement agreement and relied upon, that sealing order can be modified only if it was warranted by extraordinary circumstances or compelling need.
The court reasoned that this analogy was proper because the standard to acquire a confidentiality order is primarily the same as that to seal a record. Therefore, the standard to unseal also should be primarily the same.
Thus, the court said there is no provision for any “automatic” opening of the record, and if there is some reason to open the record, the person seeking the record must demonstrate good cause, and those seeking to maintain the closed record do not have to prove that need all over again.
In this case, the court found Mark had presented no evidence that there would be anything in the record that would help him establish his claim to a multi-million dollar trust.
Not coincidentally, the court noted, Mark’s motion was filed more than seven years after the record was originally sealed—and only after his $600 monthly stipend from John was terminated.
The appellate court also noted Mark had refused the lower court’s common sense solution, an in camera review—which would be a less intrusive way to determine if John had carved out a special trust for Mark.
In Camera Review
Here, then, is the classic conflict between a litigant’s right to access information and another individual’s right to privacy. This kind of collision occurs regularly because portions of guardianship files often are sealed.
The in camera review procedure also can resolve discovery disputes. Such disputes usually arise when a party attempts to avoid producing sensitive information or claims attorney-client privilege, and the parties seeking production claim the documents may be vital to their case or that an exception to the attorney-client privilege applies (such as the crime/fraud exception).
When a protective order won’t provide the necessary level of protection, counsel should consider asking for an in camera inspection of the documents instead. This procedure often results in an appropriate balance of both parties’ rights and interests.
It’s a good option to keep in mind. You just have to hope that the trial judge will be willing to do all that extra work.
1. Wikipedia, <http://en.wikipedia.org/wiki/John_Eleuth%C3%A8re_du_Pont>.
3. John Greenwald, Mubarak Dahir and Sharon E. Epperson, “Blood on the Mat,” Time, Feb. 5, 1996.
4. Supra note 1.