1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C9403224CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 7th day 14 of October, 1994, the above-entitled matter came on 15 for Hearing before the HONORABLE ALAN C. BONEBRAKE, 16 a Circuit Court Judge. 17 18 APPEARANCES 19 MR. THOMAS J. TINTERA Deputy District Attorney 20 Representing the Plaintiff 21 MR. MARC SUSSMAN Attorney at Law 22 Representing the Defendant 23 24 25 2 1 AFTERNOON SESSION 2 BEGINNING AT 3:15 P.M. 3 OCTOBER 7, 1994 4 5 THE COURT: Mr. Tintera. 6 MR. TINTERA: This is a continued 7 hearing in regards to the interpretation and 8 application of ORS 136,580 in the case of State of 9 Oregon v. Randal Lee Schwartz, case number 10 C940322CR. 11 Mr. Schwartz is absent by permission 12 of the court and at his own specific request. 13 Defense counsel, Marc Sussman, is here. State is 14 here appearing through Tom Tintera. 15 I've reviewed the new documents and 16 I'm prepared to share my comments with Your Honor. 17 THE COURT: We're talking about the 18 proposed addenda to subpoena duces tecum that I 19 got? 20 MR. SUSSMAN: Yes. 21 THE COURT: Proceed. 22 MR. TINTERA: Thank you. Your 23 Honor, we have been, I think, operating under an 24 assumption here which, it's a broad assumption that 25 these things are intended to be offered either in 3 1 trial or at the omnibus hearing and I thought about 2 that and was thinking about that and seems to me 3 that when I specifically analyze these requests, 4 this is nothing more than a discovery request. 5 This is an expansion of the statute to require 6 discovery from private individuals, and I can back 7 that up because I went through the Evidence Code 8 looking for any possible way that these could be 9 offered into evidence without some either first 10 preambles happening or some sort of foundational 11 requirement, and the statute is very specific: It 12 deals with books, papers, documents that are to be 13 offered into evidence. 14 THE COURT: Give me that number 15 again. 16 MR. TINTERA: 136.580. In fact, at 17 the last hearing, the court specifically found that 18 the legislature did not intend that statute to be a 19 discovery statute in regard to private individuals. 20 THE COURT: I did. I wrote that 21 down, in fact. 22 MR. TINTERA: In fact, that's in the 23 order. 24 THE COURT: I wrote down here that I 25 decided that the statute only permitted or 4 1 permitted only, more properly, what I'm going to 2 call pretrial discovery from a non-party in a 3 criminal case where the books, papers or documents 4 which are sought, a party can represent that it 5 believes exists and intends to offer into evidence. 6 And it is a two-step thing there. 7 One is, I thought that any interpretation of the 8 statute that would permit discovery of things other 9 than what a party believes in good faith to exist 10 would be just a general discovery sort of 11 proceeding and my feeling was that although it 12 isn't in here, in the statute specifically, that a 13 party needs to make a representation in good faith 14 that they believe that these documents, books, 15 papers exist and that they intend to offer them at 16 trial and they want them pretrial. 17 MR. TINTERA: Right. And in the 18 spirit of cooperation that the District Attorney's 19 Office has always portrayed in these proceedings 20 with the defense. 21 THE COURT: Did you get that? 22 That's a self-serving statement. 23 MR. TINTERA: It's my son's birthday 24 today and I decided a few self-serving statements 25 would be appropriate. With that license granted to 5 1 myself, Judge, I don't object to 1 through 12 of 2 the new subpoena or proposed addendum to the 3 subpoena duces tecum. But 13 and the items in 4 regard to Rich Cower, John Kent and Mark Morrissey, 5 as I read these, are nothing more than discovery 6 requests. In fact, they, even by their own 7 language, indicate that. Let me go through the 8 Evidence Code. 9 THE COURT: Can I interrupt? 10 MR. TINTERA: Yes, you may 11 interrupt. 12 THE COURT: I kind of had a similar 13 feeling, although I reserve, obviously, my decision 14 until I've heard both sides, and I haven't heard 15 both sides yet, but there are some things. If you 16 look at Rich Cower, for instance, where they talk 17 about notes, materials as a result of reflecting 18 discussion of a bridge meeting which ties into a 19 particular event and I suggested a person, event, 20 something that would be identifiable, so you think 21 that doesn't even count? 22 MR. TINTERA: Let's talk about that. 23 Let's say that Mr. Cower produces notes of the 24 bridge meeting as described. Is counsel indicating 25 to the court that he intends to offer those notes 6 1 into evidence? There has been no showing, no 2 statement of any theory whatsoever under any 3 rationale under the Evidence Code of how that's 4 going to occur. 5 Now, you know the State generally 6 produces its witnesses and they testify and they -- 7 we're not offering the reports of those or 8 statements of those particular written statements 9 or notes of those individuals. What I'm saying is, 10 if counsel is arguing that there has been no 11 showing to the court sufficient to allow you to act 12 under this statute, unless you give it a broad 13 discovery meaning, to act to require production of 14 those notes -- 15 THE COURT: It could be -- here I am 16 not knowing, and appropriately not knowing, what 17 the facts are in the case, but it does dawn on me 18 that, I can imagine a scenario where such notes 19 would be admissible, that is if defense knows that 20 a particular witness is going to testify contrary 21 to what they believe was in the notes, then the 22 notes might be offered as impeachment in the case. 23 MR. TINTERA: I agree with you, but 24 there has been no showing of that and there is no 25 evidence of that and so what? Without that, you're 7 1 granting a broad -- this is a discovery -- this is 2 being used as a discovery statute for private 3 individuals in a criminal case. There has been no 4 showing of lack of memory, of bias or interest or 5 inconsistencies, of unavailability of any of the 6 possible recorded recollection, I suppose. I'll 7 give them all to Mr. Sussman if he wants. Business 8 records, recorded recollection. 801 doesn't apply. 9 Prior statements of a witnesses, 613. 609, bias or 10 interest. They all require preamble of showing of 11 admissibility of documents and there has been no 12 showing. 13 This is a discovery request. That 14 is one of my arguments in a broad sense, that this 15 is nothing more than a request for pretrial 16 discovery. There has been no showing by the 17 defense of meeting any of the criteria under the 18 Evidence Code to allow a statement that these will 19 be intended that -- that these are intended to be 20 offered into evidence. These are not intended to 21 be offered into evidence. These are requested by 22 the defense because they want to know what these 23 people have in their possession. It's my belief 24 that they do not intend to offer these into 25 evidence. They just want to know what happened. 8 1 They just want these statements of private 2 individuals. And to back that up, if you look at 3 the language, I'm looking at request 13 right now, 4 says we want notes, memorandum, E mail, et cetera, 5 but either generated by you or directed by you to 6 you. Now, that in and of itself is a clue that 7 what they are requesting here is discovery. That's 8 what they want. There has been no showing, under 9 the foundational or preamble requirements under the 10 Evidence Code, that these items come in and they 11 essentially want them because they think they exist 12 and they would like to see them. 13 THE COURT: Mr. Sussman. 14 MR. SUSSMAN: Thank you, Your Honor. 15 From our review of the discovery, which we've tried 16 to outline in our motion and memorandum, it is our 17 belief that documents that have been requested, 18 with greater specificity than we're suggesting, 19 exist and may reflect action in terms of the 20 investigation of the defendant's activities. It is 21 our position that these records would show what was 22 discovered by the Intel employees who are to be 23 State's witnesses with respect to the defendant's 24 activities and the scope of the computer activity 25 that is in question and it would be relevant to the 9 1 issue of whether or not the State's allegations 2 that the defendant appropriated files with the 3 intention of theft be established. No. 1. 4 No. 2, we think, and I submit that 5 specific requests in here regarding meetings at 6 which the defendant's activities were discussed and 7 the information that was presented to the police is 8 information that would be relevant and admissible 9 for either, for impeachment at trial or to show 10 what was communicated to the police officers in the 11 motion to controvert the search warrant, because 12 there are discrepancies between what is contained 13 in the search warrant and what is contained in the 14 reports of the officers and it is our contention 15 that these documents would be necessary and that we 16 are entitled to subpoena these documents to the 17 hearing, for instance, on the motion to controvert 18 and examine them at the hearing for impeachment 19 purposes. 20 Now, the -- 21 THE COURT: I keep reminding myself 22 that, and I remind you, that what isn't the 23 question here and the question is not what can you 24 do for the hearing or trial, but what you can do 25 prehearing or pretrial. 10 1 MR. SUSSMAN: Again, there is that 2 distinction here because what we have is -- we sort 3 of have a two-part problem here. The first 4 question is, if we accept State's argument and you 5 treat this as simply discovery, then the statute 6 would not apply to allow examination of any of the 7 documents which can be subpoenaed to the trial or 8 to the hearing and examined at the time of the 9 hearing or the trial before cross-examination and 10 it would deny the opportunity to examine that 11 pretrial in a meaningful way that would save court 12 time and disruption of the trial during the process 13 itself. 14 THE COURT: The statute was intended 15 to assist in making the trial and hearing more 16 orderly by allowing disclosure of that pretrial and 17 not waiting until the witness is here and taking a 18 recess every time you need to examine -- 19 MR. SUSSMAN: Precisely. The 20 logical conclusion of the State's argument would be 21 that you can't have this at all because the statute 22 only provides for things that you can show would be 23 evidence but without, of course, seeing it. You 24 get into -- it's a circular argument, or catch 22. 25 If you can't see the documents, you can't -- you 11 1 can only make a general showing pretrial. Or if we 2 take it to the next step, that there is no 3 provision for requiring these documents to be 4 produced from a private third party, even if these 5 are State's witnesses, then there is no provision 6 at all for the defendant to get these records or 7 documents subpoenaed into a hearing or the trial, 8 if we take the State's argument and follow it 9 through to its conclusion, and that argument would 10 clearly violate the compulsory process, operation 11 of the State and Federal constitution. 12 THE COURT: I'm not suggesting that 13 you can't bring it in to trial or hearing. The 14 question is, what does this statute permit pretrial 15 or prehearing? That's the issue. Looks like it's 16 quite limited, frankly. We didn't have it at all 17 until 1993. 18 MR. SUSSMAN: I ask the court to go 19 back and see how did we get to this? The only way 20 to get these documents is to subpoena them to a 21 pretrial hearing, was the State's argument. So we 22 all need clarification. Can we subpoena these to 23 the hearing and to the trial, is one question. And 24 the second one is, as I understand your 25 interpretation, can you look at that before the 12 1 trial or the hearing by having them subpoenaed to a 2 pretrial hearing? 3 What I understood the State's 4 position to initially be, you can't have them 5 unless you can subpoena them to the pretrial 6 hearing and the statute doesn't permit you to 7 subpoena them to the pretrial hearing. 8 So I would take issue with the 9 State's interpretation of the restriction on the 10 subpoena power and the subject of those subpoenas 11 for hearing or for trial. 12 THE COURT: The statute, looking at 13 Subsection 2 here, every time I read it and hear 14 argument, I maybe understand it a bit more. What I 15 just heard you say, to some degree I agree with and 16 that is, it says here, "Upon a motion of the State 17 or the defendant, the court may direct that the 18 books, papers or documents described in the 19 subpoena be produced before the court prior to the 20 trial, prior to the time the books, papers or 21 documents are to be offered into evidence and may, 22 upon production, permit the books, papers or 23 documents to be inspected or copied." 24 I think this contemplates before 25 trial, before the hearing, "books and papers may be 13 1 subpoenaed to court so that they may be then 2 introduced in the trial or hearing," because before 3 we had this statute, we did -- they were subpoenaed 4 for the trial or hearing and then when they'd get 5 here, counsel had not had an opportunity to review 6 them. Sometimes they are quite lengthy and so we'd 7 start the trial and take a half day recess while 8 everybody looks at them and that's not the orderly 9 way to do it. The purpose of the statute is to try 10 to avoid that. 11 But it's subject to the language in 12 part in Subsection 2 "are to be offered in 13 evidence" and that means, to me at least, that 14 there be a showing, as I've said, the best I can 15 say it, that in good faith, the party believes the 16 documents to exist and that there is a theory under 17 which there may be admitted into evidence at trial 18 or hearing something less than discovery, as we 19 know it, complete discovery. It's just a small 20 crack in the wall that exists between defendants 21 and non-party witnesses in criminal cases and it's 22 a small crack that was created by the last 23 legislature and I would interpret it, and I will, I 24 still am, I don't think this is inconsistent with 25 what I said previously. I interpret this to mean 14 1 that there has to be some showing that the parties 2 believe them to exist. They've got to be 3 identified by some fashion, by date or persons 4 present or occasion or some such identification. 5 And the party has to be able to make some assertion 6 that they are inadmissible under some theory in the 7 trial or hearing. 8 Now, to what extent do you have to 9 show those things? I can understand why requiring 10 too much would require a party to disclose too much 11 about their theories or opinions in the case. On 12 the other hand, some showing has to be made. In 13 other words, if I require an affidavit from you or 14 someone, your client or whoever, saying 15 specifically how it is they know the documents to 16 exist and why it is they are relevant, how they 17 know, they can be identified and all that sort of 18 thing, that's obviously requiring too much. I 19 can't, for instance, obviously, require the 20 defendant to do it, but I would not in any case, I 21 don't think, require that much detail anyway. I 22 mean, I think the court has to rely to some degree 23 on counsel and some showing of that, as I've said, 24 that they exist and that they can be identified and 25 that they are admissible. 15 1 When we get to language like 2 Mr. Tintera was talking about, it doesn't look that 3 way when you say, talking about correspondence here 4 somewhere, one of them was to or from or looks like 5 a catchall. We're looking for documents. Do you 6 have any? That sort of thing. Which one was that? 7 MR. TINTERA: It's 13 beginning on 8 the middle of the third line and continuing on the 9 fourth line. 10 THE COURT: "Copies of any and all 11 memorandum, notes, E mail, communication or 12 documents of whatever kind, whether hard copy or 13 electronically stored, either generated by you or 14 directed to you which pertains to the following." 15 That looks just like 'send us everything and we'll 16 decide what we can use'. 17 MR. SUSSMAN: It would be if I 18 weren't limited by the specific requests which 19 follow. And as I understood the court's comment 20 previously, the language that you just read was the 21 entire breadth of the previous request. 22 THE COURT: Let's examine Sub A, the 23 bridge meeting which occurred at 3:30 p.m. on 24 Friday, October 29th, 1993, to the extent that 25 those materials reflect discussions at that bridge 16 1 meeting related to the activities or suspected 2 activities of Randal Schwartz. We've got it 3 identified by date and meeting, so that part has 4 been met. Some showing that it was the habit of 5 persons that met at Intel in such meetings to keep 6 memorandum, notes, et cetera of those meetings. 7 That's a showing, I guess, that they exist. You 8 believe they exist. You've identified them. The 9 only thing lacking, then, other than -- I don't see 10 anything here that leads me to believe that you 11 think they exist. You're looking to see if there 12 are any that exist. Something. Doesn't have to be 13 the affidavit of your client. I wouldn't care if 14 it was a memorandum, just something to show me 15 there was a reason to believe that they exist. And 16 under what theory, do you think they are relevant 17 or admissible in a hearing or trial? 18 That's asking quite a bit, but I 19 think that's what the statute requires. Because 20 anything less than that is just a general discovery 21 statute. I think in a situation like this, you 22 have to rely on counsel and I've got two, I think, 23 who are here working with me on this. This is 24 difficult. 25 First, I've been through this 17 1 statute, but you're officers of the court and until 2 proven to the contrary, I don't think it's going to 3 happen in this case, I can rely on that, and if you 4 make a representation to me that in some respect 5 shows that you have good reason to believe that 6 such documents were kept, that they exist, you've 7 identified them, you've got a theory under which, 8 because you believe you know what's in them, that 9 they are admissible, and that's going to do it. 10 But you haven't -- You've got one 11 you've identified them, but you haven't got the 12 other two. So far, it just looks like if you've 13 got 'em, we want to see 'em and that doesn't do it, 14 I don't think. And you haven't shown me how you 15 believe they're going to be admissible. 16 MR. SUSSMAN: I would represent that 17 I believe they would be admissible because the 18 documents, those documents would be admissible on 19 one of two theories: Either they would be -- we 20 believe they would show that precisely what was 21 discovered in terms of the computer runs of 22 Mr. Schwartz and what was obtained during the 23 course of those computer runs and we believe that 24 they would show that nothing of substance was 25 transferred or removed from the computers that were 18 1 in the control of Intel and that would go to the 2 issue of whether or not -- it would go to the issue 3 of the State's allegations. 4 THE COURT: Are they admissible as 5 some exception to the hearsay rule? Are they 6 business records? 7 MR. SUSSMAN: They are business 8 records. They would be the business records of the 9 type which the State has disclosed in part. 10 THE COURT: Then I assume -- can you 11 say, then, that you have information that leads you 12 to believe that it is the habit of the employees of 13 Intel to keep such records or are you just saying 14 if you got 'em, we want to see 'em? We don't know 15 whether you got 'em or not. 16 MR. SUSSMAN: I can only -- The only 17 representation I can make is by inference from a 18 report that was made by Rich Cower that was 19 disclosed by the State which was a reference to the 20 fact that this meeting occurred at which these 21 activities were discussed and the decisions were 22 made as far as what further investigation of 23 Mr. Schwartz' activities had been conducted and 24 what to do next. And this is not -- this is not an 25 ordinary set of circumstances, so all I can 19 1 represent is what can be inferred from what has 2 been disclosed in the State's discovery. 3 THE COURT: So you've seen similar 4 types of notes in the past and so you infer from 5 that that they would have been -- 6 MR. SUSSMAN: No, I'm not suggesting 7 that. I'm suggesting that there was reference to 8 the meetings at which certain activities occurred 9 and which certain actions were taken as a result of 10 that and all I can represent is that I infer from 11 that that at this meeting there would be some 12 records of the discussion or -- and what was 13 materials presented at that meeting which was the 14 basis of the further activity to investigation and 15 then reporting of Mr. Schwartz' activities to law 16 enforcement authorities. 17 THE COURT: That's the kind of 18 discussion that I would expect and I don't really 19 want to do that orally. I'd expect to see, before 20 I would permit such a subpoena, some showing of, as 21 I've said, something to show me that in good faith, 22 the parties believe that the records exist and a 23 general statement of why, identifying what the 24 records are. You've done that one. You've done 25 that on this one. The easy way to identify them is 20 1 by date or subject matter or something like that, 2 and then some brief explanation of how you believe 3 them to be admissible at trial or hearing. 4 I think that's all the statute 5 permits, Mr. Sussman. I mean, that's the logical 6 reading of it and, at least in my mind, when I take 7 into account what the state of the law was before 8 that, which was there was no provision for pretrial 9 discovery from non-party witnesses in a criminal 10 proceeding, and looks to me like other persons have 11 had the same problem that maybe all of us have had 12 from time to time in criminal cases and that is -- 13 the obvious ones that come up are like medical 14 records or x-rays, those sorts of things that are 15 not in the possession of the district attorney, but 16 a party believes that someone was hospitalized in a 17 serious accident, just knows exists and you believe 18 them to be admissible on some issue of fact that's 19 involved in the case. So you -- In the interest of 20 expediency, everybody gets to look at them before 21 trial so you don't have to recess during trial and 22 let everybody look at them and sort through them. 23 I think that's what the statute is getting at. 24 I know what the history of it was, I 25 not what the problems were and I see this statute 21 1 and looks to me like they were getting at avoiding 2 that problem and extending it to just a general 3 catchall discovery statute for any information, 4 books, papers, documents, written type information, 5 from non-party witnesses in a criminal case, I 6 don't think is what was intended by the 7 legislature, and I know you understand that. 8 From what my thinking is from prior 9 hearings, you made an effort to do it, but I don't 10 think you've yet provided me with what I'm looking 11 for in this case on these and that's the reason I'm 12 saying this to you. 13 I'm not satisfied at this point that 14 on these -- I've only looked at one or two of 15 them -- you've met that test. I'll be reluctant to 16 extend this statute to a very general discovery 17 statute for discovery from non-party witnesses in a 18 criminal case unless some appellate court tells me 19 that's what it means and I doubt they are going to 20 because they've told me to the contrary in prior 21 cases and I just doubt that's what's going to occur 22 here. 23 I think it's very limited in scope 24 and I think what it was intended to get at is these 25 documents, books or papers, et cetera, x-rays, 22 1 medical records, those sorts of things and in this 2 case, it's not -- This case is not a medical case, 3 the sort of thing that you can make, as I've said, 4 a showing that you believe that they exist. You 5 can identify them and you've got a theory under 6 which you can admit them into evidence. Unless you 7 can meet those three things, unless I think of a 8 fourth one while you are coming up with answers to 9 those three, unless you can meet those, I'll not 10 allow them to be brought in pretrial, prehearing. 11 MR. SUSSMAN: The next question is, 12 would witnesses be required to bring them into the 13 hearing at which the material would be relevant for 14 trial? 15 THE COURT: Not necessarily. In 16 fact, in reading the statute, it says before the 17 trial or hearing. 18 MR. TINTERA: That was my initial 19 objection. That Mr. Sussman mentioned that I had a 20 general objection to these people being subpoenaed 21 to the hearing to bring all these documents in 22 regard -- because I thought it was a subpoena used 23 at a hearing for discovery purposes for issues that 24 were not raised or relevant to the legal issues at 25 the omnibus hearing. That was my initial 23 1 objection. 2 Then I pointed out to the court that 3 this statute provides an avenue for that, that the 4 defense hasn't followed that particular path. 5 THE COURT: Let me interrupt and say 6 I'm not -- 7 MR. TINTERA: I'm done. 8 THE COURT: I'm not at this point 9 intending to rule on what you may subpoena to a 10 hearing or trial. The only question in my mind is 11 what you can get prehearing or pretrial. And if we 12 get through this process and I'm satisfied with 13 your efforts and say okay these witnesses need to 14 bring this stuff in, they can. We can set a date 15 and time for them to bring it in and unless they 16 have some claim of privilege or objection on the 17 record, we'll have them bring them in and the 18 parties can look at them. 19 MR. SUSSMAN: In a sense, that 20 brings us back to the nature of the problems in 21 terms of the best vehicle to deal with this because 22 to a certain extent, I think we'll have to deal 23 with the issues straight ahead. Certain of the -- 24 certain items and information which we have 25 requested or that we would request in our, in these 24 1 subpoenas or that we certainly, that was 2 encompassed in the original request and did address 3 materials which we were looking for by way of, as 4 discovery, that would parallel, in a sense that 5 would be an extension of the type of disclosure 6 which is required under 135.815 by the State for 7 documents or materials in the State's control for 8 witnesses that the State intends to call at trial. 9 The concern that I have in how this 10 plays out is twofold: Not only what can we see 11 pretrial to save time and be prepared to dance at 12 the hearing, but it is also the greater problem, 13 which is that where you have a third party such as 14 Intel, which has made a criminal complaint against 15 the defendant and has withheld documents from the 16 State, it puts us, it puts not only the defense but 17 the court in a peculiar position in that the State, 18 in good faith, can represent to the defendants we 19 have no control over these documents and these 20 records. You can have whatever I have. 21 The State has, in fact, in this case 22 requested materials and said Intel will give me no 23 more if -- I have no control over that. You must 24 proceed by subpoena. 25 So we then faced that situation 25 1 where the defendant in this case can be prevented 2 from obtaining the type of discovery needed to 3 present to the -- needed to present a defense 4 adequately. 5 If there is no vehicle to subpoena 6 documents or records, which we have some reason to 7 believe and which we believe would be material and 8 relevant, should they exist, to his defense, and as 9 I previously argued to the court, but I would again 10 just so our record is clear here, it creates that 11 twofold problem which is that while there is no 12 provision in the criminal law for the type of 13 discovery available to the civil defendant, it 14 creates -- I would suggest that that inequity, that 15 disparity creates a problem of constitutional 16 dimension. It would deny the criminal defendant, 17 under the circumstances we have here, of equal 18 protection, due process and violation of right to 19 compulsory process. 20 Certainly if Intel fired 21 Mr. Schwartz and he were suing them for wrongful 22 discharge, he would be able to obtain all these 23 documents in the normal process. 24 THE COURT: I understand that and 25 although it's interesting, it's not very helpful to 26 1 discuss the civil discovery statutes because you 2 have two completely different concepts here and a 3 civil discovery statute in a civil scenario you 4 described, we're talking about discovery from a 5 party and that's easy. But these witnesses are not 6 parties in this proceeding, and what the court can 7 require of them is a lot different. 8 MR. SUSSMAN: In this particular 9 case, the party that we're talking about, the third 10 party we're talking about is only a non-party in 11 the sense that the State is officially the 12 prosecuting -- officially the plaintiff, but the 13 State is prosecuting the complaint made by Intel 14 and it is -- Intel is not only the victim, quote 15 unquote, but also the chief complaining witness in 16 the case and I believe the defendant has the right 17 to -- in one form or another of the statute, the 18 statute should permit the defendant to compel the 19 discovery and information from the principal 20 State's witness. 21 THE COURT: No question in my mind 22 it would be a lot easier if we could. That's not 23 the question before me. The question is whether or 24 not you may. 25 I think we got started when these 27 1 proceedings began with an objection by Mr. Tintera 2 to the scope of the subpoenas requiring witnesses 3 to bring the stuff to the hearing. That may be 4 where we all started this question. I think it 5 was. Became obvious to me at the last hearing that 6 that's not what we're talking about now. We're 7 proceeding under this statute and it's about what 8 the court may do to require witnesses, non-party 9 witnesses in a criminal case to produce prior to 10 the trial or hearing and that's all I'm going to 11 decide right now and there may be a whole different 12 consideration or set of issues, but we're talking 13 about what they may be required to bring to the 14 trial or hearing. It's very limited what we're 15 doing right now. 16 MR. SUSSMAN: Because the issues 17 will arise at trial, I would invite the court to 18 make a determination on that issue as well because, 19 as I understood the matter, the Intel attorney 20 wants to file a motion to quash a subpoena that's 21 allowed pretrial and would presumably, if any of 22 these materials are allowable at hearing or the 23 trial themselves, would want to move to quash the 24 subpoenas, may wish to move to quash those 25 subpoenas as well and perhaps the clarification on 28 1 that would allow that issue of the motion to quash 2 to be heard at one time and -- 3 THE COURT: Well, that could be. 4 But the way I'd want that then is, I'd want a 5 different set of subpoenas so that they could, one 6 for pretrial, one for a hearing and another for 7 trial or whatever. I want to set it up right in 8 this case. I don't want to give an advisory 9 opinion. So if you are going to do that, I 10 apologize a bit if we kind of wondered from what 11 the original objection was here by Mr. Tintera, but 12 this, again, is the first time I've been through 13 this statute and although I think it was initially 14 his objection to the subpoenas to require people to 15 bring this stuff to the hearing, what I see now 16 we're on is whether or not they may be required to 17 disclose it prehearing. 18 I'd like to proceed in an expedient 19 manner, too. I'd like not to have to resolve this 20 in the middle of a hearing and particularly in the 21 middle of a trial. I'd like to have it framed 22 right, though, and I think the way to do that is 23 to actually issue the subpoenas. 24 What I think we're doing in this 25 proceeding is, it is a bit advisory, what we're 29 1 doing here now is, I'm trying to tell you what you 2 may -- what I would approve subpoenas for, so to 3 speak. In other words, if you issued subpoenas for 4 this material pretrial, and Mr. Tintera objected, 5 what I would, nevertheless, permit you to require 6 them to bring in pretrial. That's what we're doing 7 right now, because you haven't at this point issued 8 these subpoenas to these people to bring in this 9 material pretrial. So what I'm doing is a bit 10 advisory in nature because the subpoenas haven't 11 actually been -- I guess they were originally, but 12 the original subpoenas were for the omnibus 13 hearing, weren't they? 14 MR. SUSSMAN: Yes. 15 THE COURT: Well, I'm not here to 16 tell you how to proceed or how to plead your case, 17 but I have tried to give you guidance as to what I 18 think this statute means. And on the issue of what 19 you can require them to bring to a trial or 20 hearing, I haven't decided that issue. It's not 21 all that clear in my mind. So I'd be pleased to 22 have you argue that really well and submit any 23 authorities either of you may have on that. 24 There has to be some limit on it, 25 otherwise it is nothing more than a pretrial 30 1 discovery proceeding. You could go through all the 2 police reports and subpoena everybody you could 3 find a name for and tell them subpoena duces tecum 4 bring everything you've got regarding this case and 5 then want to sit down and talk with every one of 6 them and I don't think that's permitted, either. I 7 don't know what the limit is, but I don't think 8 that is permitted. Has to be somehow relevant to 9 the issues involved in the trial or the hearing, 10 and there must be some limit to it, although I can 11 understand the dilemma the defendant has, too, 12 trying to prepare for the case and the rights to 13 confront and cross-examine witnesses and all that 14 sort of thing, but I haven't decided that issue. 15 What I've done in the latter two 16 hearings is, I have given you my interpretation of 17 what this statute means. This statute, I think 18 pretty clearly, deals with pretrial or prehearing 19 disclosure of evidence by non-party witnesses in a 20 criminal case. 21 With that, we're all in a fog. 22 MR. TINTERA: I don't feel like I'm 23 in a fog, Your Honor. 24 THE COURT: If we are now talking 25 about, and I think we are, Mr. Sussman, we have 31 1 been the last two hearings, about an effort by you 2 to require these witnesses to bring this stuff in 3 and disclose it before even the omnibus hearing, 4 then you've got to meet the criteria that I've set. 5 You've got to give me some statement. Doesn't have 6 to be your affidavit or your client's affidavit, 7 but you've got to show me something in a memorandum 8 or something, whatever, give me some reason to 9 believe that this stuff is there. It's likely it 10 is, and you've identified it and I think you've 11 done that in most of these, and explain to me how 12 you think it's admissible and maybe even lump a lot 13 of these categories together, maybe they are 14 similar, like notes of meetings, conferences held, 15 things of this nature. They always kept notes and 16 memoranda. Somebody was appointed a secretary to 17 keep notes and they did it on their keyboard and 18 its locked somewhere in their computer system and 19 that was their habit. So for that reason, we 20 believe they exist and if disclosed, they are 21 admissible because here is why. 22 Again, I'm not going to require you 23 to disclose everything about your case, work 24 product, theories, opinions, how you're proceeding, 25 but you have to give me some reason to believe that 32 1 it's admissible as evidence, otherwise the statute 2 has no meaning. I can't put it any clearer than 3 that. 4 If you want to set this up so that 5 in a common proceeding then we also or I also 6 decide what you may subpoena witnesses to bring to 7 the trial or hearing, we're not dealing with this 8 statute, we're dealing with something else and I'll 9 decide that, too, but I think the proper way to do 10 that is to -- well, I want you to -- If I don't 11 actually require you to serve the subpoenas, I want 12 you to have them drafted and show me what you're 13 going to do, I guess, and then I can rule on it or 14 you can try to comply with my ruling and if you 15 don't like it, go ahead and serve them and set it 16 up and I'll rule consistent with that when the 17 witnesses show up for the hearing so that we make a 18 good record of it. I think that's the best way to 19 do it. And to some degree, probably, advisory 20 opinion, so to speak, is a good way to do it, but I 21 want to set it up so I know we're not here just jaw 22 boning -- we haven't done that so far -- just jaw 23 boning about what they can be required to bring in 24 and what they can't for trial or hearing. I want 25 to see it written down what you're asking for. 33 1 MR. SUSSMAN: So I will -- As far as 2 the Rick Pierce subpoena, we're clear we can issue 3 a subpoena on that. 4 MR. TINTERA: I have no objection 5 with that. I think we discussed that at the prior 6 hearing and there has been the necessary changes. 7 THE COURT: When you say no 8 objection, does that mean none by the State and you 9 leave it to Mr. Pierce or Intel to any issues they 10 may have? 11 MR. TINTERA: That's right. I don't 12 represent Intel. 13 THE COURT: Not yet. 14 MR. TINTERA: That's true. 15 MR. SUSSMAN: So to make sure I'm 16 understanding you, I will essentially go back to 17 the drawing board with what has been Item 13 on Mr. 18 Pierce and the other witnesses and separate those 19 into subpoenas for pretrial, omnibus hearing and 20 trial as separate requests so that we can deal with 21 the appropriate, whether they are appropriate. 22 THE COURT: Whatever you want. You 23 draft them and then we can have a hearing and, like 24 I said, to a certain extent, it's going to be an 25 advisory sort of opinion. I'll hear -- I want you 34 1 to give me any authorities that you have, cases, 2 statute, constitutional provisions, whatever, 3 because it does occur to me that there likely is a 4 big difference between what is permitted under this 5 statute, 136.580, Sub 2, and what may be permitted 6 for trial or hearing, and I'll try to give you a 7 definitive ruling so we don't spend too much time 8 on this. And then an order may be entered and if 9 either party doesn't like the order I enter, you 10 have a remedy for it and we've framed it all 11 appropriately. 12 Does that take care of that? 13 MR. TINTERA: Your Honor, I assume 14 by your ruling that you are finding in regard to 15 the subpoena for Rick Pierce, Paragraph 13; in 16 regard to Mr. Cower in total; John Kent in total 17 and Mark Morrissey in total that the requests do 18 not fit the requirements of ORS 136.580. 19 THE COURT: Generally. Obviously, I 20 have not gone through each one of these with a fine 21 tooth comb. Yes, I think that's it. 22 MR. TINTERA: What I'm trying to do 23 is draft the language of the order. 24 THE COURT: I think that's 25 appropriate. I'd like to have you make the effort 35 1 to meet the criteria that I've set on this and if 2 you can't do any better than that, then come back 3 and argue why and I'll decide it and that will be 4 the end of it. 5 I want to -- Because this is new 6 ground, I want to give you every effort to make a 7 showing that you can and when you say, 'Judge, I 8 can't do any more', I'm not going to -- then I'll 9 say, 'okay, here is how I'm ruling'. And then I 10 think the way we have to do it is if you're 11 dissatisfied with my ruling, then you've got to 12 issue the subpoenas and have me enter an order 13 quashing them or doing something. Otherwise. I 14 don't think you have an issue preserved. 15 Otherwise, it's an advisory opinion and that's kind 16 of what I'm doing here right now. 17 To that extent, what we're doing 18 here is having this discussion and I'm hearing 19 argument from each side and considering this and 20 the statute and trying to tell you what I think it 21 all means and what the burden is and you can keep 22 trying until you say 'I'm not trying any more. 23 There is nothing more I can do', then that will be 24 the end of it. 25 MR. TINTERA: Your Honor, in regard 36 1 to your reference as an advisory opinion, I believe 2 the statute 136.580 encompasses that type of 3 process. I believe it is a three-party process 4 where the court takes a more proactive 5 participation in what will be authorized in that 6 subpoena. I've attempted to get the legislative 7 history and I'm going to continue to do that. It's 8 not available in our law library and -- 9 THE COURT: If you read the entire 10 Subsection 2 at the beginning, I think you're right 11 because it does say upon the motion of the State or 12 of the defendant, so it contemplates some 13 proceeding being brought to authorize the 14 subpoenas, not just the issuance of the subpoena. 15 So for the purpose of this statute, at least 16 prehearing, pretrial material, we're talking about, 17 yes, I think that's probably right. For hearing or 18 trial, I think probably you have to issue the 19 subpoenas to do it. 20 We can talk about it and if it's 21 fully argued, I can tell you what my ruling is 22 going to be, but to get a ruling on it, I think you 23 have to -- you have to issue the subpoenas and I'm 24 going to have to rule on some motion on them to 25 reserve that. 37 1 MR. TINTERA: Judge, in regard to 2 scheduling, it's becoming more and more -- even 3 though I thought two weeks ago we would not be in a 4 position to try the case on November 1st, I'm more 5 than willing to file a request for reset, but since 6 we're here, I thought I would inquire of 7 Mr. Sussman what his position is on that and also, 8 too, we never know who will be on vacation and who 9 would rule on those requests, whether the court -- 10 this is an advisory opinion -- would feel it would 11 be appropriate to grant that request since it goes 12 to the presiding judge. 13 THE COURT: I talked to the 14 presiding judge and he's assured me, contrary to 15 the opinion of our prior presiding judge, that on 16 these specially-assigned cases, the trial Judge who 17 is assigned has the complete authority. 18 MR. TINTERA: Then the reset request 19 should be addressed to Your Honor then? 20 THE COURT: Yes. 21 MR. TINTERA: I didn't know that. 22 THE COURT: If the parties agree, 23 and this is taking longer than we anticipated, or 24 that you had, that's not going to be a problem. 25 I'll be pleased to work with you on that, because 38 1 if you get a number of these kinds of cases, they 2 are always in a state of flux. I want to make sure 3 when we reset it, it will be ready to go and we 4 won't have another problem with that. 5 MR. TINTERA: What I was thinking is 6 perhaps we could have a conference call. Assuming 7 that you grant the request, we could have a 8 conference call or perhaps at our next get 9 together, look at our calendars and decide, because 10 I think it will be fairly far in the future the way 11 things are going. 12 THE COURT: That would be fine. I'd 13 be pleased to do that. 14 MR. SUSSMAN: That makes sense to 15 me. 16 THE COURT: You can do that and I'll 17 rule on it. So now we can leave the trial date set 18 on the calendar technically but recognizing that it 19 isn't going to start on that date, November 1st. 20 MR. TINTERA: Yes. 21 THE COURT: And I won't hold anybody 22 to that. I'm assuming the defendant agrees with 23 this. 24 MR. SUSSMAN: Yes. 25 THE COURT: That's the situation. 39 1 This case will not start on November 1st. 2 Although, until we choose another date, we'll leave 3 that as a tentative date for trial. We're not 4 going to start this on November 1st. 5 MR. SUSSMAN: I suppose we just need 6 a date then for us to come back for Round 3 of the 7 subpoenas here. 8 THE COURT: How long do you think 9 you'd want? 10 MR. SUSSMAN: To get this done? 11 THE COURT: Yeah. 12 MR. SUSSMAN: My hesitation, Your 13 Honor, is, as I explained to the court, a problem 14 that I have for scheduling because of a pending 15 case. Perhaps we can set a conference call on 16 Tuesday to reset this for this reason: I've 17 advised the court, there is this murder trial set 18 for October 17. 19 THE COURT: What kind of time? 20 MR. SUSSMAN: State is asking for 21 reset on that and I won't know until Tuesday 22 morning. 23 THE COURT: So maybe 1:15 in the 24 afternoon? 25 MR. SUSSMAN: Yes. 40 1 THE COURT: Mr. Tintera, can we do 2 that on the 11th? 3 MR. SUSSMAN: Can we do that by 4 telephone conference? 5 MR. TINTERA: I can. 6 THE COURT: You bet. 7 MR. TINTERA: I don't mind if that's 8 reset as long as we don't set that on November 18 9 because I believe I will still be in trial on that 10 date. But any other -- 11 THE COURT: Are you available? 12 MR. TINTERA: I'm available. 13 Include me on the 1:15 conference call. 14 THE COURT: You can end your 15 racquetball game a little early that day. 16 Would you like it later? You want 17 to do it at 1:25? 18 MR. TINTERA: That would be better 19 for me. 1:30. 20 MR. SUSSMAN: If you haven't 21 showered it doesn't matter because we're doing it 22 on the phone. 23 MR. TINTERA: I don't have a phone 24 in the gym. 25 THE COURT: Can't you take a cell 41 1 phone over there? 2 MR. TINTERA: If I could get it away 3 from my wife. 4 THE COURT: 1:25 next Tuesday. 5 Thank you. We'll initiate the call. 6 MR. TINTERA: Thank you, Judge. 7 MR. SUSSMAN: Thank you, Your Honor. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 1 STATE OF OREGON ) ) ss. 2 County of Washington ) 3 4 5 I, Frank R. Rosales, CSR, the 6 undersigned, do hereby certify that on the date so 7 stated in the before-captioned matter, I was an 8 Official Court Reporter for the Twentieth Judicial 9 District of the State of Oregon and that as such, I 10 did make a record by means of Stenotype of the 11 before-captioned matter and that the foregoing 12 transcript is a true and accurate record of said 13 proceedings. 14 DATED this 14th day of January, 15 1997. 16 17 18 ____________________________ 19 Frank R. Rosales, CSR Official Court Reporter 20 21 22 23 24 25