Open discovery -- pushing the envelope?
Every now and then I do a civil case, and I always marvel at how easy it is. You mean I don't have to wait until witnesses testify to know what they're going to say? I get to send the other party written questions they have to answer, and then I get to take their depositions -- in fact, I get take the depositions of anybody I want -- well before the trial ever starts? It always reminds me of a scene in Crocodile Dundee where he and the woman he's escortingwhere are accosted by three thugs intent on a mugging. When one pulls out a a switchblade, Dundee looks at them and sneers, "That's a knife?" He then pulls out something similar to what Jim Bowie had at the Alamo, gazes lovingly at the 14-inch blade, and says, "Now this is a knife!" Same thing. Now this is open discovery.
Apparently, there are some prosecutors in Cuyahoga County who don't understand the difference between civil and criminal cases when it comes to discovery.
There's a big kidnapping/rape case going on in a courtroom up here, and the defense investigator was just served with a subpeona by prosecutor, which included a demand that the investigator provide the following documents:
Please provide a certified copy of all interviews (whether audio/visual or written), reports and notes taken in regards to the above matter.
Please provide any contractual agreement and fee schedule entered into by yourself and any attorney in the above matter.
Please provide a comprehensive CV which includes all criminal cases that you have worked on in Cuyahoga County and all cases that you have testified as a witness for the defense.
Where to begin? First, it's incredibly amateurish. Note that the copies are supposed to be "certified." By whom? Normally, certification is reserved for public records, which are certified by the public agency, or provided for by statute. (For example, there's a provision for allowing medical records into evidence based upon the hospital's certification that they're genuine and authentic.) I can't certify my own records, and neither can an investigator. What's more, a subpoena duces tecum can require a party to produce documents, but it can't require a party to create one. I doubt if the investigator has a "comprehensive CV" which includes all criminal cases she's worked on. The contract and fee schedule bit are similar to standard requests of that nature in civil cases of expert witnesses, for the obvious purpose of showing possible bias: knowing that Dr. X is getting paid $10,000 a day to testify that the plaintiff's mental distress is directly attributable to Kellogg's negligently leaving out the toy in the cereal she bought for her kid might have an impact on how that testimony is treated by the jury. But if the investigator testifies at all, it's not going to be as an expert.
A bigger problem is that the request is far in excess of anything allowed by the discovery rules, even with open discovery. CrimR 16(H)(5) allows the prosecutor the right to copy or photograph "any written or recorded statement by a witness in the defendant's case-in-chief, or any witness that it reasonably anticipates calling as a witness in surrebuttal." In other words, the only statement -- forget notes -- that the state is entitled to are those of witnesses who'll be testifying at trial on the part of the defense. As for just about anything else, that's flatly prohibited by 16(J)(1), which specifically provides that "material subject to work product protection" is not subject to disclosure, including "reports, memoranda, or other internal documents made by the prosecuting attorney or defense counsel, or their agents in connection with the investigation or prosecution or defense."
The most astonishing thing about the request, though, is its cavalier disregard for not just work product, but attorney-client privilege as well. The request, after all, isn't limited to interviews with witnesses; it would include any interviews the investigator has conducted with the defendant himself, or notes of conversations with the defendant. As an agent of the defense attorney, the investigator's conversations with the defendant fall within the attorney-client privilege as well. In fact, the request could be deemed to include the investigator's conversations with the defense attorney as well.
So, in addition to being far in excess of anything permitted by the rules and violating work product and attorney-client privilege, the request also tramples upon the defendant's 5th and 6th Amendment rights. Not bad for an afternoon's work.
I'm really at a loss to understand this. When I first heard about it, I thought it might just be the work of a prosecutor who'd decided to make the jump to civil practice and figured he'd get an advance look at what it was like. Upon more reflection, I thought it would have had to have been approved at the higher levels, but I know most of the people over there, and I can't think of any of them that would pull something as goofy as this. (I'd be willing to bet a Benjamin or two that whoever came up with this didn't run it past the folks in the appellate division.) Whatever happened, somebody over there ought to call a quick halt to this. The 8th District and, to a degree, the Ohio Supreme Court have been increasingly critical of the prosecutor's office here, and if they get wind of this, it's not going to make things any better.
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Then again, this might fall into the category of Everybody's Entitled to Do One Dumb Thing. Mine was earlier this week, when I forgot to set up the Case Update so that it would post on Monday. You'll see it tomorrow. It'll be my last post of the week; my wife and I are taking a little weekend jaunt to DC. The Case Update for next week will be delayed until Tuesday, assuming I remember to post it. That means that there will be no post on Monday, May 14, even though it is the 6th anniversary of my first post here. In lieu of flowers, please send cash.