As our office handles upwards of 1500 misdemeanor cases per year, the new discovery rules are going to be a daunting challenge.

At present about 30 - 40% of our defendants plead pro se.

How are your offices handling the new rules with respect to pro se defendants?

Art_3914_Discovery_(New).docx (26 Kb, 78 downloads)

We're currently having these discussions, so I'd love to hear any other places bright ideas. The problem that we have is an inability to use an all digital discovery through Odyssey due to extreme fragmentation among local agencies.

We're currently talking about buying a Fujitsu Snapscan, a dedicated computer with dual DVD burners and massive external HDD, and providing discovery electronically. The attorney would get a DVD with offense reports, videos, etc on it, and another copy of the DVD would be provided to the court's file, along with a disclosure form memorializing what's actually on the DVD.

The question of what to do with pro se defendants was brought up at this years Rural Prosecutor Forum, without much in the way of closure. I think there are really only two options- provide them with discovery the same way you would an attorney and let them come back the next setting to plea, or let them, in front of the court, peruse the entire state's file prior to plea. A paper disclosure form stating what they've had the chance to look at would also be necessary.

It's going to slow things down significantly. The judges are just going to have to not like that and then get over it.

Actually under (d), it looks like the trial court would have to order the State to produce / permit inspection.

(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).

So, would it appropriate to add a discovery waiver to the multitude of waivers the pro se defendant signs? If they don't want to waive, that's another story.

We are going to have a discovery compliance form for our misdemeanor cases.

For pro se defendants, the form will detail what discovery is actually available in the case (offense report, 911 call, etc.) and that the defendant was given an opportunity to review it. The defendant will then swear that he was given an opportunity to review the listed items, reviewed them, and is asking the court to continue to with the plea or that he was given the opportunity to review, waived the review and is asking the court to continue with the plea.

For cases with attorneys, we are doing something similar, but are not requiring that they attorney swears that they did receive it. Attorney will just state that they got discovery items X, Y, and Z. After discussing X, Y, Z, with their client, they wish to proceed with the plea bargain and waive any future discovery that may or may not exist.

We currently use JustWare' s hosted (cloud based) software as our case management software. We are scanning everything that comes in using the Fujitsu scanners. We are expoloring the cost of building electronic interfaces with our two main police agencies. Until then, we recently bought 5 scanners. We are working on waivers for pro se defendants in misdemeanors. For felonies, we are getting New Dawns ediscovery portal that will allow defense attorney's access to designated discovery materials and it will create a report of all the items down loaded/viewed by defense counsel. this report will be included in our plea packet to be signed at the time of the plea. We are still working with some technical issues but we will have it up and running by January 1.

Zach-

Are you implementing any of your discovery electronically, or is it all going to be paper based, with the addition of the compliance form? Are you misdemeanor only, or have both misd. and felony jurisdiction?

I just got off the phone with my Odyssey rep. They don't have anything comparable to Netdata or Justware's e-discovery portals, at least not that they could tell me about right now. Yay. If anyone knows any differently, or has an idea of how to do this within Odyssey, please let me know. No, switching to Netdata isn't going to fly with my county commissioners.

Brody,

All of our discovery will be given out electronically through NetData. We have both misdemeanor and felony jurisdiction and will be using the online discovery for both. If someone requests paper discovery, we will give it to them but will charge as allowed in the Code. We really want to encourage use of online discovery.

Ultimately, I believe my forms will be used for the felony cases as well. We're still putting our compliance procedures together, so my plan is subject to change.

NetData will print out a report showing what was uploaded and if/when it was accessed by defense attorneys. I'm not confident using that alone though. I think the NetData report is best used as a back up to our compliance statement.

Have you considered using DropBox to get reports to defense attorneys electronically? It's free up to a certain amount of data. I don't know what they charge after that, but it might be something you could use as a stop gap until your commissioners approve of a more full featured eDiscovery platform.

Zack

Right now we're considering using a stand-alone Odyssey terminal with restricted logins for defense attorneys. They would come to our office and use that terminal to view, print, or download documents. It would be like a cloud with a very, very small weather pattern...

One option that I may play with over the next month or so is the Clio software suite. It's really meant for solo/small firm but has a web based document sharing. Anyone with any experience with it from the other side of the bar?

We're planning on using Net Data's online discovery for ours. We have already purchased it with our last Net Data update. (However, our IT guy is not happy with their SSL security (or something to that effect). Supposedly they're working on it.)

Russ Thomason, DA from Eastland, is the Net Data guru around here. Net D is developing a compliance form that should satisfy the statute and will run through Document Services. It should automatically input all of the discovery uploaded. At least that's the latest word I got.

Not sure how we're going to handle all of the DVDs we have, however. It's going to be very time-consuming (and take a great deal of server space) to download & upload all of the media.

Lori,

We are doing a test run with the NetData's online discovery system. We've had success uploading lengthy DWI arrest videos and witness video interviews. The longest videos took approximately 5 to 6 minutes. The defense attorney working with us on the trial run was able to download the videos (after a few errors were resolved) after just a few minutes download time.

Uploading video and audio is our biggest technical issue. The JustWare we use is hosted so we require internet to upload (its not in house on our servers). We currently use DSL which is entirely too slow to do this. As the Courthouse is in BFE, we have few options for broadband. We are experimenting with WiMax but don't know if it will work although we are currently getting 5 MB shared speed. We really need more like 30 MB. We have considered using our eDiscovery portal for everything except video and audio which we would provide via disc.

Before discovering New Dawn had the eDiscovery portal, we seriously looked at file sharing sites like dropbox. Dropbox didn't have receipt mechanism at least that we saw. We did look to others sites (Share file and another one by Citrux) that did though. Also Brazos County has a system they currently use that is built on a software package you can buy. I don't recall the name. Their IT department was very helpful in meeting with us and discussing the pros and cons of their system. the, however awe switching over to another software as we speak.

We use Odyssey and it can store most formats. You can scan or attach files so what your police are sending you should be okay. The discovery piece is coming, and the idea is that attorneys can log into and access records they are tied to and the evidence you store electronically. I am currently testing Odyssey's eCharging piece that enables law enforcement to submit cases to your office electronically. So if you are receiving most evidence that way, then easier to pass to the defense that way. Cheaper too. This is at no cost to the client and no cost to law enforcement -- Tyler enhanced on their own dime. I am on the Attorney Manager steering committee and want to make sure I represent your interests and concerns. Email me at wesley.wittig@fortbendcountytx.gov for a more detailed discussion.

Our office is now paperless so we have been and will be emailing discovery. We will also be asking defense attorneys to provide thumb drives that we can download audio/video to. We did purchase redaction software and we redact all identifying info except first and last name from all reports we send out. If the defense wants the redacted info, all they have to do is file a motion with the court and explain why they need someone's social security number or DL, etc. That is not something I am going to give out without a court order. We will have a folder on our server with a "fill in the blanks" discovery form for each cause number showing what we have provided to the defense that can be updated whenever someone provides something new. We plan on printing that off at the time of the plea, having it signed by the defense and entering it as an exhibit at the plea/trial.

Almost every law enforcement agency in our county uses Spillman so all cases are delivered to our office for intake electronically. Makes life alot easier when it comes to sending out discovery. However, we are using our scanner alot and scanning and saving info into NetData.

Wow. Fascinating to see that smaller counties seem ahead of some of the larger counties in many ways. Right now, we are working on a form with check boxes for most of the usual discovery and extra space to list extra items, to be signed by the parties at the time of dispo. We use odyssey, but all of our material is received on paper or disc at this time. We are aware of Odyssey's discovery function, but it is still in the development phase.

Is anyone doing compliance that does not involve a list or log filed with the court?

If anyone would like to share their efforts with their peers, please consider emailing copies of your policies/forms/documents to me; we'd like to make them available to attendees of the Elected Prosecutor Course in December.

Thanks!

Food for thought for those who don't have systems that generate a discovery list automatically:

Fill-in-the-blank lists:

Pro:
Allows greater detail
If more stuff, just add to the list
Con:
More labor intensive

Check-box lists:

Pro:
Easier to fill out
Con:
What about unusual stuff? Still need a list, blanks, whatever.
Lack of detail allows people to say stuff like, "I got the report, but not that page of the report"

Waivers of Discovery:

Pro:
Easiest
Con:
Seems completely at odds with 39.14(n)

General Observations:

Article 39.14 does not distinguish between misdemeanors and felonies.

I think the best compliance with 39.14(j) is filing "the list" with the clerk as part of the papers in the case. Others disagree.

How do we balance Article 39.14(i)--record or document discovery--against the general records management concept that our trial files need only be kept as long as they are administratively valuable?

We're having a problem I didn't really anticipate.

We have defense attorneys setting pleas who have NEVER requested discovery.

The law begins with, "as soon as practicable after receiving a timely request from the defendant..."

So what are we supposed to do with defense attorneys who do not request discovery...never look at our files...nothing?

It seems a bit ridiculous to have to spoon-feed everything to them just so they can sign off on having received it all at plea. (When we know they haven't looked at a thing...)

Your thoughts?

The act does not require that discovery be conducted. It could be that, after consulting with a client, an attorney makes a reasonable, strategic decision that no discovery need be conducted. "Yeah man, I did that, get me the best deal." Under the act, I think you sign off on a log (or whatever you call it) indicating that no discovery occurred. As a prosecutor handling a bunch of writs, this may make it more difficult on me in the future.