My local defense attorneys do not like having to pay upfront for discovery, so questions have arisen a lot lately about exactly how much I have to produce. (The whole open-file policy makes them think that because they always get to see everything that are actually by law entitled to any and everything.)

Now, the judge signed an order that states:

"The State is ordered to produce and copy the following items: Any existing video, audio and/or digital recording to include but not limited to 911 calls and any traffic stop involving the defendant. It is further ordered that all notices or production required herein are to be provided to Defendant's counsel..(name and address) not later than 14 days prior to trial."

The defense attorney has already received and paid for copies on most items, but some of our videos are still VHS and cost us $20 to reproduce (one of our constables does it for us and that is his going rate). This is the one she has not yet received (although she has had access to it, and even came with her client and checked the tape out of our office to watch them with defendant.)

My question is....does the above order require me to actually make the copies and mail them to the attorney without her having to pay for it? Or can I assume that the judge saying I must "produce and copy" means I just have to make it available (I have sent more than one letter saying you are free to come view the stuff, or you may pay us to make you a copy). Her response is, give me the copies for free, the judge ordered you to do so.

Is there case law that says produce means "make available for inspection" as opposed to copy, mail, and swallow the cost yourself? The case law I find all takes about "production and inspection" but I didn't get to see this order before it was signed and the words along with the 14 day requirement are not at all what we discussed in the open court discovery hearing.

This issue comes up for us regularly because we are very small office, not much staff, and fewer attorneys with little time to make the defense copies for them. So we contract it out and it costs us money to get someone else to do it. I'm afraid that unless I can show the judge case law otherwise, he is going to expect me to make all of these copies without getting paid for them--and I'm positive that if this defense attorney gets it this time, she will expect it in every single case.

Point out to your judge the duty he/she has to the county's taxpayers to be fiscally responsible. No one who has to ask voters for their job every 4 years would like to have an opponent pointing out the wasted tax dollars spent to benefit criminals.

Failing that, perhaps your local defense bar will agree either formally or informally that an open file policy is a good thing and worth paying for copies.

Having a constable get paid to do your copying would make me squirm.

Good luck!

Good ideas, thanks.

We require the defense attorney to provide us with a blank tape. We then make the copy for them. They are not entitled to copies of documents, only the right to review them. We have an open file policy for this.

Suzanne, if you want to do your own dubbing, places like Amazon sell a Panasonic DVD-R/VHS combo for less than $175. With it you can dub a non-copy protected DVD to VHS tape and vice versa. Cheaper in the long run that paying someone to do it. We use one in the office to handle open records requests.

Janette