Rule 508 - Secrets of State and Other Official Information; Governmental Privileges(a)Claim of privilege. If the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.(b)Recognition of privilege. A governmental privilege existing at common law, or created by the Constitution, statute or court rule of this State, shall be recognized.(c)Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall 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.Amended November 28, 2017, effective 1/1/2018.Comment
Rule 508(a) and (c) tracks U.R.E. 508 which is based on draft of F.R.E. 509. See comment to Rule 501.
Rule 508(b) is new. The Committee believed that U.R.E. 508(b), which would abolish all governmental privileges except as created by the Constitution or statutes, is undesirable.
For prior Delaware cases illustrating this area of law, see Morris v. Avallone, Del. Super., 272 A.2d 344 (1970); Smith v. Smith, 18 Del. 365 (1899).
For a statute relating to this area of law, see 29 Del. C., Chapter 100 (Freedom of Information Act).