Monday, October 10, 2011

DOJ Charges to Defendant for Discovery of Documents is Excessive

A few weeks ago an assistant U.S. attorney told David Finn, a Dallas criminal defense lawyer, that the government lacked funds to pay for copies of the documents it had requested as reciprocal discovery, even though the government had earlier charged Mr. Finn approximately $1,000 at 22 cents per page for copies of the discovery documents it had provided.

The cost of discovery has generally been borne by the party from whom the documents are requested. Occasionally, and much more frequently recently, as in Mr. Finn's case, the government has charged defendants or their lawyers for copies of documents provided in discovery.

Generally, these charges are of little significance to the defendant since either the documents are relatively few, the defendant has deep pockets and can easily afford to pay for them, or the defendant is legally indigent and the costs are borne by the government under the Criminal Justice Act. However, when the defendant is a middle-class person with private counsel and the documents are voluminous, as they often are in white collar cases, the cost to the defendant (or his attorney) can be substantial.

The Federal Rules of Criminal Procedure are silent on costs of providing discovery. In fact, the Rules (most likely drafted with the garden variety non-white collar criminal case in mind) actually provide not for the turning over of documents but for their disclosure and availability to the defendant "for inspection, copying or photocopying." Rule 16(E). One federal appellate court has held that in the absence of an explicit requirement in the Rules that the government bear the cost of providing documents, it is an abuse of discretion for a district court to require it do so. United States v. Freedman, 688 F.2d 1364 (11th Cir. 1982). Since the costs of litigation would almost always be greater than the cost of the documents, there understandably have been few reported cases in this area.

In my view, in a criminal case, the government should provide without cost those documents required to be disclosed under the discovery provision of the Federal Rules. One should not be required to pay the government for the privilege of being prosecuted. The cost of production, of course, can be considerably reduced by providing the documents in electronic form. Further, the expense -- in the event of a conviction -- could be recovered as a cost of prosecution (see 28 U.S.C. 1918(b)).

In any case, the cost of 22 cents per page, while perhaps not out of line with what some lawyers charge clients for copies, appears excessive, but perhaps not so excessive in view of some of the expenses paid by the Department of Justice. In a report of otherwise minimal import to the criminal justice community, the DOJ Inspector General two weeks ago noted that expenses at DOJ conferences "appear to be extravagant." The IG highlighted a $53 per person luncheon, a $5 Swedish meatball, an $8.32 cup of coffee and a $16 muffin. Perhaps if DOJ paid less for food, it would charge less for discovery and be able to pay for reciprocal discovery.  (To be fair, "extravagant" refreshment costs are often required by a hotel or conference center as part of the conference package; there is no such excuse for "extravagant" costs for producing discovery.)


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Great post, Larry!

Posted by: Peter G | Oct 11, 2011 7:34:44 PM

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