September-October 2015

How different offices do discovery

Are documents in your office initiated on paper or does your county have an electronic filing ­system?

Dick Bax, General Counsel, Harris County DA’s Office
Most of our documents are initiated on paper. However, the county and our office are moving toward an electronic filing system.

Laurie English, 112th Judicial District Attorney in Pecos County
All agencies file paper copies of their reports, etc., with my office. We are experimenting with one sheriff’s office and allowing them to file via email in an attempt to develop a system that we can expand to other agencies in the future.

Kevin Petroff, First Assistant Criminal District Attorney in Galveston County
We do not yet have electronic filing through the district clerk’s office, though we do send out most of our discovery electronically.

Paul Davis, Assistant District Attorney in Williamson County
Electronic filing system—we have a paperless office. We store only the media (DVD, CD, flash drives) and papers that cannot be scanned (certified copies, medical records, etc.) in a file.

Steven Reis, District Attorney in Matagorda County
Most cases are filed on paper, although we ask that the agencies provide digital copies of the paperwork and of all digital evidence (photos, videos, audio).

Robert DuBoise, Assistant ­District Attorney in Parker County
Documents in our county are still initiated on paper. We do not have electronic filing for criminal cases yet but will as of November 1, 2015.

What case management software does your office use? Does the software take care of all ­requirements of CCP art. 39.14?

Dick Bax: I am told the case management software we use is a custom system developed within the county. At this time, for the most part, compliance with 39.14 is still done manually.

Laurie English: Pecos County im-plemented the Odyssey System a few years ago and we use that for our case management software, although we are still learning how to use it effectively and efficiently. Since my other four counties do not use Odyssey, nor have those counties implemented a county-wide system, we enter the cases from all five counties in my jurisdiction into Odyssey to condense our case management into one general system for my office. We continue to do a lot of work manually to satisfy the requirements of Article 39.14. We scan the paper copies and continue to date and number the pages via a “Bates” program so we can document what the defense was given and when we provided it.

Kevin Petroff: Our county uses Odyssey Case Management software from Tyler Technologies. It does not assist in discovery or any requirements of 39.14. Apparently they’re working to develop software that would assist in these requirements, but for now it’s just talk.

Paul Davis: Odyssey from the Software Group/Tyler Technologies. Most of the work is manual. The software is really just a system for keeping various offices on the same page with the status of the case, and inside the office, it provides a central location for notes, settings, and case documents.

Steven Reis: We use Odyssey Case Management by Tyler Systems; it does not automatically manage 39.14 requirements—that is done manually.

Robert DuBoise: We are on TSG Odyssey 2013 for case management software. The software does not address the CCP art. 39.14 requirements. We still have our legal assistants manually generate a discovery compliance log that lists all of the documents and other tangible items provided as well as a general description of each item withheld.

How many additional people have been hired to help with discovery since 2013? What are the assigned tasks of the ­people in your office who handle discovery?

Dick Bax: None. Discovery requests are handled by assistant district attorneys, investigators, paralegals, and administrative assistants. These individuals are responsible for copying responsive documents and electronic files.

Laurie English: I have not hired any additional staff since 2013 to help with discovery. We have upgraded our scanners and copiers, and we have all become more proficient and efficient with the processes to streamline preparing discovery for delivery to the defense.

Kevin Petroff: We have not hired any additional people for the sole purpose of discovery. Discovery is handled almost exclusively by the assistant district attorneys, although administrative staff will sometimes be asked to handle large copy projects. Attorneys usually do the copying as they must create a log or index of the items being turned over.

Paul Davis: Three. Kathleen Brunner enters all intake—that is, she creates the discovery log of all incoming DVDs, CDs. Colleen Taylor processes requests and makes the actual copies of media. And I collect and enter the requests, which are sent in electronically and in person, and keep them in order for a timely response. I also update the discovery log to reflect when work was done, and I email paper discovery. We equally avail ourselves to defense attorneys who come in to view materials and respond to special projects as requested by the ADAs.

Steven Reis: We have no additional employees since 2013 in our budget. Utilizing state funds, we have employed a part-time employee who provides assistance in 39.14 compliance requirements. Otherwise, all digital copying is done by our investigator, receipts are obtained by office staff, and the part-time person helps in collating paperwork for compliance.

Robert DuBoise: No additional persons have been hired to address the discovery compliance issues. We have a legal assistant assigned to each of our two district courts. These two are responsible for scanning the paper offense reports, generating the discovery compliance logs, making copies of the digital media, and transmitting the information via email (with a request for the attorney to come to our office to pick up the physical media). As additional information is received in a case, each attorney will update the discovery compliance log as necessary so that it is current when the time for a plea or trial comes.

How do defense attorneys access the State’s files?

Dick Bax: We have approximately 400 attorneys signed up to a website dedicated to providing access to the State’s file. Access is limited to attorneys of record. Attorneys of record may access offense reports and other documents as well as audio and video files in many cases through the portal. In all other scenarios we provide paper and electronic copies upon request.

Laurie English: Most of the attorneys who practice in our courts do not live in the counties we serve. If the defense attorneys want to look at a file, they can do so while we are in court, or they can travel to the office where that file is housed. Since I took office in 2005, we have provided paper copies of all the reports, witness statements, and copies of CDs, DVDs, etc., to the defense attorneys upon their appointment or when we are notified they have been retained. These copies are hand-delivered or mailed as soon as the discovery packet is ready.
Kevin Petroff: We have an open-file policy if attorneys want to come look at a file. We try to encourage appointments, but many just show up wanting to see the file. We don’t require written requests for discovery before we send it out. We send most paper discovery and some audio/ video through Hightail, a system that allows us to upload documents and videos into a cloud-based file that stores the information, creates a log, and allows us to control access to the files. Defense attorneys can then create their own username and password to download the documents free of charge, which is then logged to our system. (The Hightail system we use is good but not great—it takes forever to upload videos, for example. Our county just happened to have an existing contract with Hightail, so our Information Technology people worked to make it useful for discovery.) Larger videos are usually just copied with DVDs and manually turned over to the defense.

Paul Davis: Material that can be copied is copied and left at our front desk to be retrieved by the defense.  Paper discovery is sent via email. Material that cannot be copied can be viewed in our office. Defense counsel must come in person to pick up copied materials; most send a staff member. They don’t need an appointment to pick up materials, but some choose to make an appointment when they’re coming to view child advocacy center interview discs or material that is classified as child pornography. Our staff makes all the copies but does not do so until a timely request is made by the defense, per Code of Criminal Procedure  art. 39.14.

Steven Reis: Our office prepares an initial defense packet, which includes copies of all paperwork submitted initially (offense reports, statements, warrants, affidavits, etc.). An attorney is provided this packet immediately upon being appointed or retained; they typically come to our office to pick it up, although we will mail or email it upon request. We generally do not make copies of digital evidence until requested by defense counsel. At that time, copies are made and provided, again, either in person or by mail if requested. We make all necessary copies and do not require defense counsel to make their own copies, although that would be permitted upon request. No appointment is necessary to obtain copies nor to review the case materials, although one is recommended to ensure the materials are readily available.

Robert DuBoise: Defense attorneys are sent electronic copies of the scanned offense report by email. Pictures and short audio files are also sent by email. For videos, multiple pictures, and long audio files, we make copies of the CDs or DVDs for the defense attorneys, who are informed what type of discs and how many of each type their case involves, and they are required to bring blank discs to our office when they pick up their copies. Discovery is sent whether or not the defense attorney requests it.

Does your office charge defense counsel for the costs of copying files?

Dick Bax: Normally, our office does not charge for such costs.

Laurie English: I do not charge for the copying/duplicating costs. It doesn’t make sense for me to charge an attorney (especially the court-appointed ones) and then have the county billed for those copies. The administrative burden is not cost-effective in my mind.

Kevin Petroff: We do not charge defense counsel for the duplication costs.

Paul Davis: Appointed counsel makes no compensation, but we ask retained counsel to give us blank DVDs, CDs, and flash drives in reimbursement to those used to make copies for them.

Steven Reis: No, even if represented by retained counsel. We do request that retained counsel provide replacement media (CD, DVD, USB drive) if used; however, the discovery is not withheld if replacement media is not provided.

Robert DuBoise: We do not charge. We do require they bring blank media to replace that used to make their copies.

Does your office redact identifying information in the files, or do you require defense attorneys to redact?

Dick Bax: Generally speaking, unless 39.14(c) is implicated, we do not redact identifying information that is contained in our files.

Laurie English: When redacting must be done, it is done manually in my office.
Kevin Petroff: We do not redact information (except CPS information) but rely on defense to do so.

Paul Davis: We follow the Michael Morton Act, requiring defense counsel to redact.

Steven Reis: We redact nothing. Our documentation (receipt and compliance documents) clearly identify the responsibility of defense counsel.

Robert DuBoise: If the redaction is not required to be done by our office by law, we produce the material without redactions and require the defense attorney to do it in compliance with CCP art. 39.14.

How does your office notify defense counsel of Brady material before ­trial? What about during or after trial?

Dick Bax: Currently, we notify defense counsel of potential Brady material by written correspondence, by email correspondence, or through filings with the court.
    When our prosecutors discover potential Brady material during trial, disclosure is made to defense counsel as soon as possible. Normally, this is done by simply talking with defense counsel. In most cases, the oral disclosure is subsequently noted on the record. In situations involving the discovery of potential Brady information after trial, we attempt to notify the defendant in writing while sending a copy of that correspondence to the defendant’s trial or appellate attorney.

Laurie English: Brady material is handled the same way that we provide discovery. If there is no paper to hand over to the defense attorney, a letter or memo is created that documents whatever information needs to be conveyed so we have a paper trail for future reference.
    Brady notifications are handled the same whether it is before, during, or after trial. If documents exist, we provide copies the same way that do with all discovery in the case. If there is no paper to hand over to the defense attorney, a letter or memo is created that documents whatever information needs to be conveyed so we have a paper trail for future reference.

Kevin Petroff: We notify the defense counsel in writing and then file that notice with the district clerk’s office. That’s true of pre-trial and post-trial Brady notices. We do this in addition to keeping it in the Hightail folder.

Paul Davis: This work is handled by the ADA on the case. If they locate any Brady material that has not already been turned over, it is called to the attention of our discovery division so that copies can be made and sent out immediately.
    This is pretty much the same as material discovered before trial. As quickly as it can be, we make a copy and alert the defense trial counsel. For work done in response to writs, this material is sent to the appellate attorney.

Steven Reis: We utilize email more than printed mail to notify defense counsel of all aspects of discovery, including any Brady material. If applicable, we make copies (paper or digital) of the material and provide this information to defense counsel at their convenience.
    We provide general notice as well as specific notice, both before trial and during or after trial. For example, I recently sent a digital copy of the DPS memo regarding DNA via email to all defense counsel with whom we have recently done business. It provided no additional information other than that provided by DPS and explains that additional specific information will follow. That email is maintained as proof of initial compliance and, once a comprehensive list is made of the DNA reports since 1999, we will send written notice to defendants, defense counsel last representing the defendant, and file copies of the correspondence with the district clerk in each applicable file.

Robert DuBoise: Brady material is required to be produced as soon as practicable. I personally try to get that material out the same day we receive it. Our policy (although not written) has always been to produce that material in writing. That applies whether the discovery is prior to trial, during trial, or after trial.