Monday, April 9, 2012
BLT: The Blog of Legal Times reports that the U.S. Attorney's Office in Washington recently asked to review notes made by attorneys for DLA Piper, including George Mitchell, during interviews of persons such as Brian McNamee and Kirk Radomski who are expected to be government witnesses in the trial of Roger Clemens. See here. Judge Reggie Walton had ordered that these notes, made by the lawyers in their investigation of drug use by baseball players, be produced to the defense over DLA Piper's objection. The government took no position on the defense application for production.
Now, claiming that the government "did not lift a finger" to secure the notes, Clemens' attorneys ask Judge Walton to deny the government access to the notes. Otherwise, the court will "reward the prosecution for taking a head-in-the-sand approach," they claim.
I cannot agree with Clemens' position. Discovery is not a one-way street either for the government or for the defense. Both parties should be equally entitled to the documents. Even objections to production of documents by third parties should not operate as a waiver to review the documents, if they are produced. Although the defense, unlike the government, has no obligation to produce material harmful to its case, when relevant documents are secured by court order from third parties, absent special circumstances such as privilege, they should be available to both sides. A contrary rule would conceal information from defendants much more than from prosecutors.