B-159881, SEP. 15, 1966

B-159881, SEP. 15, 1966

TO THE ATTORNEY GENERAL:

BY LETTER OF AUGUST 9, 1966, THE ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION REQUESTED OUR VIEWS IN CONNECTION WITH THE PAYMENT OF $3,926 FOR THE DUPLICATION OF DOCUMENTS ON BEHALF OF CRIMINAL DEFENDANTS IN A MAIL FRAUD CASE ENTITLED UNITED STATES V. PRODUCTS MARKETING. THE PERTINENT FACTS ARE BRIEFLY SUMMARIZED BELOW FROM INFORMATION FURNISHED BY THE ASSISTANT ATTORNEY GENERAL.

FIVE OF SEVEN DEFENDANTS IN THE CASE ARE REPRESENTED BY COUNSEL APPOINTED BY THE COURT PURSUANT TO THE CRIMINAL JUSTICE ACT OF 1964. THE DEFENDANTS ARE REQUESTING COPIES OF CERTAIN RECORDS OF THE CORPORATION IN THE POSSESSION OF YOUR DEPARTMENT WHICH ARE TO BE USED BY THE GOVERNMENT AT TRIAL. APPARENTLY THE COURT IS PREPARED TO ISSUE AN ORDER UNDER RULE 16 OR A SUBPOENA UNDER RULE 17/C) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE PERMITTING THE DEFENDANTS TO INSPECT AND COPY THE DOCUMENTS. QUESTION HAS ARISEN, HOWEVER, AS TO WHETHER THE COSTS TO THE DEFENDANTS OF COPYING THE DOCUMENTS SHOULD BE BORNE FROM APPROPRIATIONS OF OF THE DEPARTMENT OF JUSTICE OR FROM THOSE OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS UNDER THE CRIMINAL JUSTICE ACT. COPYING COSTS BY DEFENSE COUNSEL ON BEHALF OF THE DEFENDANTS ARE STATED TO BE $0.05 PER PAGE. ON THE BASIS OF 3,926 DOCUMENTS TO BE USED BY THE GOVERNMENT, THE STATED PRICE PER PAGE WORKS OUT TO A TOTAL COST OF $3,926. IT MAY WELL BE THAT NOT ALL OF THESE DOCUMENTS WILL REQUIRE REPRODUCTION. HOWEVER, THE RECORD SHOWS THAT THERE ARE IN THE GOVERNMENT'S POSSESSION SOME 50,000 DOCUMENTS IN ALL, AND IT IS REASONABLY CONCEIVABLE THAT THE ULTIMATE COST FOR REPRODUCING DOCUMENTS ON BEHALF OF THE DEFENDANTS WOULD EXCEED $3,926.

IN REVIEWING THE LEGAL LITERATURE AND JUDICIAL PRECEDENTS RELATED TO CRIMINAL DISCOVERY PROCEDURES AND SUBPOENAS FOR THE PRODUCTION OF DOCUMENTARY EVIDENCE, WE HAVE NOT BEEN ABLE TO ASCERTAIN THAT THE GOVERNMENT, APART FROM THE CRIMINAL JUSTICE ACT, IS UNDER ANY OBLIGATION TO FURNISH COPIES OF DOCUMENTS IT MAKES AVAILABLE FOR INSPECTION PURSUANT TO ORDER OR SUBPOENA ISSUED BY THE COURT. IT WOULD APPEAR THAT, EVEN FOR THE IMPECUNIOUS DEFENDANT, THE OPPORTUNITY FOR INSPECTING AND COPYING THE DOCUMENTS IS ALL THAT THE RULES CONTEMPLATE. IN ANY EVENT, IT WOULD SEEM THAT WHETHER THE PROSECUTION OR THE DEFENSE SHOULD BEAR THE EXPENSE OF COPYING SUCH DOCUMENTS IS A QUESTION THAT IS DETERMINABLE ONBASES APART FROM WHETHER THE DEFENDANT CAN AFFORD THE EXPENSE INVOLVED. WHERE THE DEFENDANT CANNOT AFFORD THE EXPENSE AND COMES UNDER THE CRIMINAL JUSTICE ACT WE DO NOT BELIEVE IT WOULD SERVE ANY USEFUL PURPOSE TO DECIDE THE QUESTION OF RESPONSIBILITY FOR COPYING EXPENSES FOR THE SOLE PURPOSE OF DETERMINING WHETHER APPROPRIATIONS OF YOUR DEPARTMENT OR THOSE OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS SHOULD BEAR THE EXPENSE. SINCE THE PRODUCTION OF DOCUMENTS UNDER COURT ORDEROR SUBPOENA PURSUANT TO RULE 16 OR 17 (C) IS TO FACILITATE THE PREPARATION OF AN ADEQUATE DEFENSE, IT WOULD SEEM THAT THE PURPOSES OF THE CRIMINAL JUSTICE ACT ARE SUBSERVED WHERE APPROPRIATIONS MADE TO IMPLEMENT ITS PROVISIONS ARE UTILIZED TO FINANCE COPYING SERVICES ON BEHALF OF DEFENDANTS IF DETERMINED BY THE COURT TO BE NECESSARY.

IN CERTAIN SITUATIONS IT MIGHT WELL BE THAT YOUR DEPARTMENT WOULD, AS A MATTER OF ADMINISTRATIVE EXPEDIENCY, FURNISH COPIES FOR RETENTION BY THE DEFENDANTS RATHER THAN THE DOCUMENTS THEMSELVES FOR INSPECTION. BUT IN OTHER SITUATIONS, FOR EXAMPLE, WHERE THE DOCUMENTS ARE VOLUMINOUS AND PARTICULARLY WHERE, AS HERE, IT IS NOT CLEAR WHICH OF A GREAT MANY DOCUMENTS ARE IN FACT TO BE REQUIRED BY THE DEFENSE, YOU MIGHT CHOOSE TO COMPLY WITH ANY COURT ORDER FOR THE PRODUCTION OF DOCUMENTS BY FURNISHING THE DOCUMENTS THEMSELVES RATHER THAN COPIES. IF YOU WERE TO FURNISH THE DOCUMENTS FOR INSPECTION RATHER THAN COPIES, THERE WOULD NOT APPEAR TO BE ANY BASIS FOR CHARGING DEPARTMENT OF JUSTICE APPROPRIATIONS WITH THE COST OF ANY REPRODUCTION SERVICES UTILIZED BY THE DEFENSE FOR ITS PURPOSES. THE EXTENT THAT SERVICES FOR COPYING IN SUCH CIRCUMSTANCES ARE DEEMED NECESSARY AND THE COSTS THEREOF REASONABLE, IT IS OUR OPINION THAT THEY MAY AND SHOULD BE PROVIDED PURSUANT TO THE PROVISIONS OF SUBSECTION (E) OF THE CRIMINAL JUSTICE ACT OF 1964, 18 U.S.C. 3006A (E).

ACCORDINGLY, IT IS OUR VIEW THAT WHERE YOUR DEPARTMENT COMPLIES WITH A COURT ORDER TO PRODUCE DOCUMENTS FOR INSPECTION BY AN INDIGENT DEFENDANT IN A CRIMINAL CASE BY FURNISHING THE DEFENDANT COPIES MADE WITHIN YOUR DEPARTMENT OF THE DOCUMENTS INVOLVED, NO QUESTION OF COST ALLOCATION NEED BE RAISED BUT THAT WHERE YOUR DEPARTMENT FURNISHES THE DOCUMENTS THEMSELVES, ANY COSTS ATTENDANT TO REPRODUCING THEM BY THE DEFENDANT ARE FOR CONSIDERATION AND CONTROL BY THE COURT UNDER THE CRIMINAL JUSTICE ACT AND PAYABLE FROM APPROPRIATIONS PROVIDED FOR ITS IMPLEMENTATION. NO COST ALLOCATION NOR CHARGE TO ANY APPROPRIATION WOULD LIKEWISE BE NECESSARY IF THE COURT PERMITTED ITS DUPLICATING FACILITIES TO BE USED IN PRODUCING COPIES OF THE DOCUMENTS.

A COPY OF THIS LETTER IS BEING SENT TO THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS. THE ENCLOSURES WITH THE ASSISTANT ATTORNEY GENERAL'S LETTER ARE RETURNED AS REQUESTED BY HIM.