The Sheriff's dept has a video of a child victim that a lawyer in a custody case wants. It is going to grand jury in the future but the custody trial is going to happen first. If the custody lawyer serves the sheriff's dept with a subpeona duces tecum is there an exception to them handing over the video b/c its a pending investigation? Got some law on it? Thanks.

the texas supreme court recognized the existence of a "law enforcement exception" and there are some other cases applying it. try these

Hobson v. Moore, 734 S.W.2d 340, 341-42 (Tex. 1987)(recognizing law enforcement privilege in civil litigation); See also In re Westwood Affiliates, L.L.C., ____ S.W.3d ____, 2007 WL 441692 (Tex. App.�Houston [1st Dist.] February 8, 2007)(holding that order in civil premises liability case that denied a motion to compel disclosure of documents associated with pending murder trial comported with law regarding law enforcement privilege).

[This message was edited by David Newell on 10-10-07 at .]

While you fellows were listening to Criminal stuff in Corpus Christi, I pointed out House Bill 1572 passed by our friends in Austin as a piece of legislation the criminal folks would not like. It is now effective for I suspect actions filed after 9-1-2007. The cases cited are in jeopardy. Section 30.06 of the Texas Civil Practices and Remedies Code gives the civil lawyer a chance to get the video. Subsection (d) is the tricky part. It allows the judge hearing the civil case to review the documents in camera and then hold it discoverable if relevant and there is a specific need for the discovery. I bet civil lawyers will bat nearly a thousand, Hall of Fame for sure, under this standard.

Do not be fooled by the early part of the legislation that proclaims the evidence in possession of the law enforcement agency is not discoverable. Subsection (d) is the problem.

Not that it relates directly to the inquiry at issue, but do you think, my wise compatriot, that our little favor from Austin vitiates the rule of the little supremes' Walker case that, if a civil litigant requests the DA's entire file, that file is protected by the work product privilege (the make-up of the file itself reveals core work product in the form of strategy)? I would tend to think not, since the bill seems only to address the threshhold issue of availability of evidence from a law enforcement agency and not one of privilege, but I've been wrong before.

Scott sometimes you see a statute and you know there will most likely never be a case or AG opinion about it. But then there are times like these, (to quote David Groh). The insurance lawyers and plaintiff lawyers will be hearing about this law at seminars this year and we will get a chance to argue privilege on our files.

However, I think the first line of defense will be the investigating law enforcement agency in this county. Our DA office has very little that is generated by us. We could argue and will that we are not a "law enforcement agency" within the meaning of this statute. But the police department will be fighting this perhaps without our knowledge for the next two years (wishful thinking). I think work product will prevail but if they can get the investigating officer under oath in deposition and make him look silly without the pictures, we will have to evaluate whether the best approach is still the proverbial stone wall on civil discovery.

O well, back to reading contracts for now.

Anyone have this come up since the addition of 30.006 to the Texas Civil Practices and Remedies Code?

I just read about this in another thread ...

Subpoena for Criminal Case File

Would it be improper for the Sheriff's Office to give the original tape to the District Attorney's Office who is going to present the criminal case to the grand jury?

Ray, What's the definition of "law enforcement agency" within the meaning of the statute?

David, I had this come up after the enactment of that statute. I was a bit alarmed that the civil lawyers for a couple of different agencies who typically handle matters like this were unaware of the statute.

Our case involved a request to depose the detectives and see their files. Judge squashed the subpoenas. I do not believe it was the criminal defense acting through civil process.