We have an open file policy in my office. I want to insure that I have a reasonable and reasonably consistent policy. If you're willing to share the particulars of your open file/discovery policy in your office, please email me.
[This message was edited by ML on 06-18-08 at .]
When counsel files a letter of rep, a copy of the offense report is made. Local attorneys have a box in my office; out of towners get it mailed to them. I will not copy videos / DVDs, as neither my secretary nor I have the time. The equipment is available in the office, and most of the legal secretaries in town have figured out how to use it. If there is a sensitive victim statement in the file, I require that counsel agree that it will not be given to the defendant. Have seen that happen with disasterous consequences.
In 30 years, I've tried lots of things, and this seems to work. If my case is so weak that I can't share the information, I need to rethink my case. Normally, my reports and evidence is strong enough that a request for a plea offer comes pretty fast.
Lisa L. Peterson
Nolan County Attorney
I allowed the defense bar to put their own photocopier in a conference room where they can review and copy their clients' files. We remove victim impact statements and criminal history acquired through TCIC. The defense attorney must be physically present to review files (we do not permit the attorney's staff to go through the files; this encourages the attorney to contact the assigned prosecutor and discuss possible plea agreements rather than let the cae grow moldy on the docket). We've found that this has tended to expedite final dispositions in the cases, and even a lessening in contested matters,
I have the lawyer sign a discovery agreement agreeing not to file discovery motions in exhange for the offense report and all witness statements and my pledge in writing to comply with Brady. A mutual pledge to reveal expert witnesses is also included.
Ken, we used to have a similar system with a waiver of formal discovery. What do you do when the defense attorney then turns around and drags you through a discovery hearing, wasting everyone's time? We had that happen a few times. Or what do you do with the attorney who won't sign the waiver at all? Do you close the file except for court-ordered discovery issues? I have judges who will sign standard discovery orders if requested. I don't particularly mind this. The order actually gives the defendant less access than he would have if he bypassed formal discovery and just looked at our file.
I call the lawyer who files the standard motions after receiving a copy of my file and remind him of the agreement that he just signed. All of them have backed off. If they did not, there would be a closed file for them in the future.
If they refuse to sign, it is a closed file.
Could both Dan and Ken email me a copy of their agreements? Likewise, I'll send a copy of a discovery waiver agreement that was used for a time by me in Fort Bend County.
I like having open files. I dislike having to litigate discovery motions after I have provided a complete copy of my file (sans cch of course) to the attorney.
Ken has some very good ideas about discovery that were covered in his lecture last year at the annual.
The true key to the success of an open file policy is having the support of your judge. The threat of a closed file in the future may or may not work, and your whole point of offering an open file was to avoid the hassles of a closed file. But, if you have a judge who will enter only a very limited standard discovery order, then the defendant will always elect an open file (on the terms you specify).
Plus, you will have to have the judge's support to "enforce" any waiver agreement.
[This message was edited by Martin Peterson on 06-28-08 at .]
Greg, at the time, ours was a simple rubber stamp on the front of the file that said the attorney signing below has read the file in cause numbers _________ and agrees to waive formal discovery. There is a signature line for him to sign.
We used it for several years with only the occasional problem as mentioned. I always make the habit of putting in the record during trial that the attorney has seen everything pursuant to our open file policy, to which he or she agrees on the record. This is usually at the point that the attorney asks to see a statement under Gaskin and acts like it is the first time he has heard of this witness (all for the jury's benefit, I'm sure).
Probably a more formal waiver would be better since it could be filed with the clerk for future reference in a writ.
Greg, Could you send me a copy of your discovery agreement from Fort Bend? Ken has already sent his to me. We've always had just a gentlemen's agreement re our open file procedures. I think moving to a written agreement of some sort might be warranted since not everyone is a gentleman (or a gentlelady...) Also, a written agreement should allay the defense lawyers' concern about a writ based upon no discovery motions. I think I'll get the judges' input/suggestions also before finalizing the agreement. Thanks.
Certainly, I'm sending via email.
Greg, do you think you could send me your agreement as well.
Does anyone file their waiver of discovery with the court?
Bringing this topic back up to the top...We are now having to revamp our open file policy due to some abuses by attorneys,so if anyone has a copy of their written open file agreement that they could shoot to me by email (in profile) I would greatly appreciate it.
We are also revamping our open file policy. Anyone willing to share their agreements? Please send email to email@example.com
I sent you mine.
Ken, Please send your open file agreement to me. We've been operating with an information, handshake kind of agreement, too, and would like to formalize the process a bit.
Also, we have a Standard Discovery Order and at least one judge won't consider defense atty filed motions for discovery unless they can establish that what they want isn't already covered and why they are entitled to have what they are asking for.
I sent you a copy.
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