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. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 4th day 14 of November, 1994, the above-entitled matter came 15 on for Hearing before the HONORABLE ALAN C. 16 BONEBRAKE, a Circuit Court Judge. 17 18 APPEARANCES 19 MR. THOMAS J. TINTERA Deputy District Attorney 20 Representing the Plaintiff 21 MR. MARC SUSSMAN Attorneys at Law 22 Representing the Defendant 23 24 25 2 1 AFTERNOON SESSION 2 BEGINNING AT 1:30 P.M. 3 NOVEMBER 4, 1994 4 5 MR. TINTERA: Afternoon, Your Honor. 6 This is the time set for continuation of a hearing 7 in the case of State of Oregon v. Randal Lee 8 Schwartz, case number C940322CR. The defendant is 9 present, not in custody, and appearing with 10 counsel, Marc Sussman. 11 THE COURT: Afternoon. 12 MR. SUSSMAN: Afternoon, Your Honor. 13 THE COURT: Ready to proceed? 14 MR. SUSSMAN: We're ready to 15 proceed. 16 THE COURT: I did receive, about an 17 hour ago, the memo that you supplied to me. I 18 reviewed my notes as well. My recollection is that 19 this is sort of a continuation of the proceeding 20 that we had last time. 21 MR. SUSSMAN: Yes. 22 THE COURT: Mr. Tintera still had 23 some objections to some of the subpoenas that you 24 had proposed, the language, and I basically 25 concurred with him on that and was giving you 3 1 another opportunity to draft subpoenas that would 2 require persons to bring materials to court to be 3 copied, examined prior to the time of trial. 4 MR. SUSSMAN: That's correct. What 5 we attempted to do in the memorandum that I 6 submitted to you is to accomplish two or three of 7 the -- address two or three of the questions or 8 issues that were left over from last time. The 9 first was to address the issue of what could be 10 subpoenaed based upon your ruling. 11 THE COURT: Sure. 12 MR. SUSSMAN: By going through the 13 specific items requested in the proposed subpoenas 14 and making, attempting to make the showing that you 15 determined was required under Subsection 2 of the 16 statute, 136.580, and so the first portion of the 17 memorandum addresses each of those specific -- each 18 of those requests that were identified in the 19 proposed subpoenas and state our basis for our 20 belief that the documents existed and theories of 21 admissibility. 22 THE COURT: That looks like the 23 beginning of Section 3A through what? I recently 24 read everyone of those. I have a habit that I 25 picked up over a number of years and I always flip 4 1 to the last page to see what the bottom line is. I 2 did see what you've done in the interim, but I also 3 looked to see the research that you had done really 4 on what you felt to be the proper statutory 5 interpretation. 6 MR. SUSSMAN: That's correct. 7 Because one of the questions that was left open was 8 whether or not there was a different scope to what 9 could be subpoenaed to trial under Subsection 2. 10 It was our position that the scope 11 was not so limited as your ruling for trial and in 12 the further research, it was our conclusion that 13 the only authority on that, State v. Spada, which 14 doesn't really discuss in great detail but does 15 suggest that there really was no preliminary 16 threshold showing requiring the materiality or 17 relevance for the records that had been -- that had 18 to be subpoenaed. 19 THE COURT: I haven't reread Spada. 20 I did at one time. Did that deal with the subpoena 21 to pretrial deliver? 22 MR. SUSSMAN: No. When Spada was 23 decided, it was before the amendment to add 24 Subsection 2. 25 THE COURT: That doesn't prevent a 5 1 lot of lawyers. Just because there is no statute, 2 doesn't mean that -- that's what raised this whole 3 question, because attorneys did, pretrial, subpoena 4 matters to be brought to court and the district 5 attorney would object. 6 MR. SUSSMAN: That's correct. 7 THE COURT: That's why we have the 8 statute. 9 MR. SUSSMAN: That's correct. In 10 fact, the legislative history shows that the 11 statute was intended to address precisely that 12 problem because there had been some rulings in 13 Multnomah County. 14 THE COURT: We had them here, too, 15 except people out here weren't as vocal. I'm 16 looking for language that you have from Spada and 17 you say here there was no such suppression since 18 the records the defendant seeks in this particular 19 case could have been obtained by means of a 20 subpoena duces tecum pursuant to, and lists the 21 statute, but that means to trial. 22 MR. SUSSMAN: That's correct. 23 THE COURT: Here we're not dealing 24 with the trial. 25 MR. SUSSMAN: That's correct. 6 1 Because Spada was decided before the statute was 2 amended, the second part of the memo addresses the 3 question about the statutory interpretation of what 4 can be subpoenaed to trial and pretrial in light of 5 Spada, which we had not discussed last time, and 6 also in light of the legislative history which 7 indicated that it was merely intended to allow the 8 attorneys to subpoena pretrial whatever they could 9 have subpoenaed to trial. That was the thrust of 10 the legislative history. It was written very 11 brief, the amend -- the statute was opposed by the 12 ODLA and the only witnesses testifying on the issue 13 were Mark Blackman, and for -- basically 14 Mr. Blackman's letter is -- 15 THE COURT: I skimmed through that. 16 I didn't read all of it. 17 MR. SUSSMAN: Sure. His oral 18 testimony basically summarizes what his letter 19 said. 20 So the second portion of the 21 memorandum and the argument that we would offer to 22 the court is that there is the limitation that you 23 determine would be appropriate to subpoena 24 something pretrial and are not applicable and 25 should not be applicable to trial. 7 1 In fact, if you look at the -- when 2 you read the statute as a whole and in context as 3 we've described in the memorandum and look at the 4 legislative history, that limitation really should 5 not be applied to the pretrial proceeding to where 6 we could subpoena those records. However, as I 7 say, that was the second part because the first 8 thing we tried to do was address the issue of 9 subpoenas based upon your ruling, and rather than 10 go through the whole thing, I apologize to the 11 court for the late filing of that, but if you want 12 to take a few minutes and read through that portion 13 of it to see whether we've met your threshold 14 requirement, I can save -- I wouldn't need to argue 15 any further. 16 THE COURT: I think the procedure 17 I'll use is what we've done in the past and that is 18 let Mr. Tintera reflect on those and then if he has 19 no problem with them, I probably won't. If he 20 does, then I'll rule on them. 21 Hearing nothing, I assume he agrees 22 with all of them. No? 23 MR. TINTERA: The problem I have, 24 and my comments are going to be a little more rough 25 than they normally would have been because I 8 1 haven't had time to really digest this memo. I've 2 only had an opportunity to read it once so I can't 3 specifically respond to everything. 4 THE COURT: Don't worry too much 5 right now about the second portion which really is 6 an argument, I think, and I have no problem with it 7 because I've given interpretation to the statute -- 8 first time ever been asked to do so -- but asking 9 me to reexamine the interpretation I've given to it 10 and maybe not be as restrictive to it as I've been, 11 that part I can deal with later. I could take that 12 under advisement and read it and then consider it. 13 Right now, let's talk about the first part. 14 MR. TINTERA: If what I understand 15 the first part is about, I didn't break these into 16 parts. Like I said, I haven't had that much time 17 to read them, but as I see it, there has been no 18 change to the request of October 4th that I do have 19 a copy of and did receive a timely copy of the 20 subpoena request of -- for instance, I'm looking at 21 Mark Morrissey that includes 1 A, B, C, D, E, E 22 being the last one, communications with the 23 Computer Emergency Response Team subsequent to 24 October 28, 1993. 25 THE COURT: What are you referring 9 1 to? 2 MR. TINTERA: What I think his last 3 subpoena request is and I'm trying -- 4 THE COURT: It's not with the memo 5 here? 6 MR. TINTERA: That's what I'm trying 7 to clarify. 8 MR. SUSSMAN: Your Honor, 9 Mr. Tintera is correct. On October 4, -- 10 THE COURT: I do see that here. 11 You're right. 12 MR. TINTERA: So what I'm saying is, 13 I read his memo and I see no change in the actual 14 requests that were made for authorizing subpoena 15 duces tecum to the October 4th request of the 16 defendant. Is that correct? 17 THE COURT: What he's trying to do 18 now is meet the criteria that I've set to these. 19 MR. SUSSMAN: That's correct. 20 THE COURT: And that's what he's 21 done in the memo. 22 MR. SUSSMAN: Yes, in what I refer 23 to as the first part of the memo. 24 THE COURT: That's right. The 25 second part is the suggestion that the court ought 10 1 to reexamine the criteria that I've set. If he 2 gets them all, if I rule that he's met the 3 requirement, then it's all kind of moot. If I rule 4 on any of them that he has not, then he'd like to 5 have me reexamine the criteria. 6 MR. TINTERA: So your question to me 7 is whether I think he's met the requirement of the 8 statute? 9 THE COURT: That's right. And the 10 reason I'm asking that, I know previously you have, 11 after examining some of the requests, said you have 12 no objection to this and this and I'm asking you, 13 are there any more now or are you prepared -- have 14 you had time to do that since you got the memo? 15 MR. TINTERA: My reaction to the 16 memo is that the defendant is requiring the court, 17 and this is a blend of the whole memo and in 18 particular these requests, is requiring the court 19 to make this a discovery -- requesting the court to 20 make this a discovery statute. Everything that he 21 said in the memo is not anything that he intends to 22 offer into evidence or at least that I recall that 23 he is still wanting this to be a discovery statute. 24 It is not a discovery statute and I don't agree 25 that he's met any of the criteria that the court 11 1 has set forth for any of his subpoena requests, to 2 answer your question. 3 THE COURT: All right. 4 MR. TINTERA: I do have more 5 comments, but I tried to answer your question. 6 THE COURT: You did and that's what 7 I want. That means I need to rule on each of them 8 and then if there are any of them that I concur 9 with your statement, then I'd have to go on and 10 decide whether or not I want to reexamine the 11 criteria that I've set for the threshold showing 12 that he needs to meet. 13 The question in my mind is how to do 14 that since I haven't read through all that, through 15 all this. I don't know that I want to do that now. 16 MR. SUSSMAN: Since I have no 17 further -- 18 THE COURT: This is your argument, 19 right here? 20 MR. SUSSMAN: That is it. As the 21 court may have noted -- make sure I point it out 22 because it is kind of buried -- in there is an 23 affidavit from Mr. Schwartz stating a factual basis 24 for our belief in the existence of certain 25 documents based on business practices at Intel. So 12 1 I just point that out to the court, along with the 2 statements that support the statements in the 3 memorandum. 4 So I would have perhaps -- I would 5 perhaps suggest, out of fairness to the court and 6 Mr. Tintera, that I'd be prepared to stand on our 7 showing in the memorandum and if Mr. Tintera wants 8 to make additional comments to the court -- 9 THE COURT: I'm sure he does. 10 MR. SUSSMAN: I would expect that he 11 would and the court may just take the whole matter 12 under advisement and issue your ruling. It was 13 clear last time what you wanted me to do was 14 present you with this, read it and tell me if it 15 meets it or -- 16 THE COURT: That's right. 17 Otherwise, I'm wasting your time and your client's 18 money and we need to get on with this. 19 I did make it clear that at least 20 until I reconsider, if I do that, the decision that 21 I'm making here is different than any decision I 22 might be requested to make as to what you might be 23 entitled to subpoena to a hearing in trial. 24 MR. SUSSMAN: That's correct. 25 THE COURT: If I limit you here, 13 1 isn't necessarily so that I would limit you to the 2 same extent for the subpoena to the time of trial. 3 This deals with pretrial disclosure. 4 Mr. Tintera. 5 MR. TINTERA: Judge, I would point 6 out that what we're dealing with is a very narrow 7 area, books, papers, documents, although I noted in 8 the defendant's memo that he referred to those as 9 records. I guess he's trying to expand the scope 10 there. But it's books, papers and documents that 11 are intended to be offered into evidence and the 12 basis of this statute is the Oregon -- not the 13 Oregon, the Federal Rules of Criminal Procedure, 14 17C USCA, 18th section, 3484, and that statute has 15 been interpreted by a number of courts and I'm 16 going to cite to the court three cases: United 17 States v. Brooks, 966 Federal 2nd, 1500, from the 18 District Court in Washington, D.C. Circa 1992, 19 where they address this particular statute and -- 20 THE COURT: That's a similar federal 21 statute? 22 MR. TINTERA: This is the basis, 23 according to Mr. Blackman, this is the basis and 24 there is a little bit of language right at the end 25 about who is entitled. They cleaned up the 14 1 language, but the initial bill parroted the federal 2 statute. And in talking about the use of this 3 rule -- and in the federal system there was a 4 motion to quash a subpoena that was used in this 5 particular -- used to subpoena personnel records or 6 crime records in regard to a witness -- who 7 happened to be a police officer -- during the 8 trial, and they wanted records of that particular 9 thing and they tried to use this statute as a 10 way -- 11 THE COURT: Brought to trial? 12 MR. TINTERA: Yes. They tried to 13 use this statute -- well, I don't know how they 14 were using it in the federal system. I'm not sure 15 what the differences are. I think this statute -- 16 I'm not sure if this is the same statute that a 17 federal, a person in the federal court would use to 18 bring things to trial, so I can't answer that 19 question. What they said was this was, that the 20 defendant in that case was trying to use this 21 statute to, as a subpoena to subpoena things as a 22 discovery tool and they said the subpoena was 23 properly quashed because it's not a discovery tool. 24 It's specifically related to books, papers and 25 documents. 15 1 In the 9th Circuit, U.S. v. -- 2 THE COURT: I want to reflect. Just 3 because it's books, papers and documents does not 4 necessarily equate to non-discovery material. 5 MR. TINTERA: No. What they said, 6 he was using that statute, his subpoena request -- 7 THE COURT: Let me say this because 8 every time we get together, I have to refresh my 9 thinking on this. You're trying to make a 10 distinction between the defendant trying to -- the 11 defendant searching for evidence in the case? 12 MR. TINTERA: Yes. 13 THE COURT: And on the other hand, 14 asking that evidence that the defendant, I'm going 15 to say, in good faith believes exists and the 16 defendant wishes to produce as evidence in an 17 upcoming trial or hearing, to be produced pretrial 18 so that he may review it, copy it and that sort of 19 thing? 20 MR. TINTERA: Yes. I think this is 21 not a discovery statute. This is something for 22 production of things that the defendant, as the 23 court has previously ruled, intends to offer into 24 evidence and also books, papers or documents. 25 I can't find in U.S. v. Brooks the 16 1 exact language of the subpoena, but they did say 2 that was one of the issues raised by the defendant 3 that the court addressed, that the subpoena was 4 properly quashed because the defendant was using it 5 as a mechanism for discovery, which is beyond the 6 scope of this particular statute as being very 7 specific. 8 The 9th Circuit in U.S. v. Wenke, 9 which is 604 Federal 2nd 607, 1979, on Page 612 10 does address that and in that particular case, the 11 court quashed a subpoena that sought all files, 12 records, correspondence, writings, interoffice 13 communication, interagency communication and 14 reports relating to the investigation of Walter C. 15 Wenke, the defendant. And it said that was 16 properly quashed as being overbroad in scope. 17 That followed or it was after the 18 United States Supreme Court dealt with the proper 19 interpretation of that statute in New York Times v. 20 Jes Calavich, 99 Supreme Court, 11, 1978. Frankly, 21 that case dealt with a subpoena for a reporter's 22 records, but Justice Marshall referred to the 23 requirement that in a subpoena request under the 24 statute, there must be showing required by the 25 defense in order to allow such a -- in other words, 17 1 the court -- although in talking about this 2 statute, it said it requires more than a general 3 assertion of necessity. There must be factual 4 basis in document to show that the documents were 5 material, relevant or necessary. So that case, in 6 my mind, says that there is a requirement for the 7 defense to make some showing, not so he can 8 distinguish between the case where, that is not 9 before the court now, but of a subpoena duces tecum 10 to a trial or to an actual trial and the use of 11 this particular statute 136.580, Sub 2, for 12 bringing things pretrial. 13 I believe the statute is very clear. 14 There is no necessity, in my mind, to go to the 15 legislative history because there is no vagaries 16 about the language of the statute. It is very 17 clear in what it said. 18 What Mr. Sussman is complaining of, 19 he doesn't like the interpretation or he doesn't 20 like the scope of the statute. He wants it to say 21 more and that's essentially what his memo says. I 22 want more. But it doesn't do that. It is not -- 23 The federal rule specifically says, this wasn't 24 incorporated in the Oregon rule, but it 25 specifically says in Section E that statements made 18 1 by witnesses or perspective witnesses may not be 2 subpoenaed from the government or the defendant 3 under this rule. So the federal rule specifically 4 says you can't do essentially what he's asking for 5 the court to do. It was not enacted in Oregon law, 6 but I think it has some -- well, frankly, I'm not 7 sure if it has any weight. I suppose you could say 8 on the one hand the legislature knew about it and 9 didn't include it, therefore, can't apply to 10 witnesses. On the other hand, you say if they took 11 it from the federal rule, they had the same intent. 12 So maybe it's just a wash on what that means, but I 13 know the federal rule specifically addresses 14 individual witnesses' statements and says this rule 15 is not for that. 16 THE COURT: If individual witnesses' 17 statements are incorporated in books, papers and 18 documents, do we make a distinction then that even 19 though it's in a paper, it's not a paper because 20 it's really a witness' statement? Is that what you 21 are saying? 22 MR. TINTERA: That gets back to the 23 arguments that I made before in our last hearing on 24 the Evidence Code, that there is no provision or 25 few provisions and there hasn't been a showing by 19 1 the defendant that he qualifies under those 2 provisions, and I went through this, 609, 613, 805 3 Sub 5, 803 Sub 6, 804, and there are a few 4 provisions in the Evidence Code where actual 5 documents or statements of a witness may be 6 inadmissible, but there are many, many foundational 7 requirements for all those and what I was saying 8 the last time is the defendant has to meet those 9 foundational requirements also because to not do 10 that is to allow the statute to be broadened into a 11 wholesale discovery statute. 12 And when I was in my office thinking 13 about this, if I had -- I don't remember his name, 14 but the defense has an expert witness and if I 15 directed a subpoena of a nature, such as some of 16 the things sought here, to that particular witness, 17 I believe the defense would -- the voice of the 18 defense attorney would be raised louder than mine. 19 Let me put it that way. That's all I have to say. 20 MR. SUSSMAN: If I may make a couple 21 remarks. 22 THE COURT: Let me write down what 23 he said here first to complete my notes. (Pause.) 24 Proceed, Mr. Sussman. 25 MR. SUSSMAN: I would like just to 20 1 address briefly Mr. Tintera's comments on the 2 federal law, but not go back through all the 3 material. 4 Federal Rules of Criminal Procedure 5 17, which is the rule from which Subsection 2 was 6 adapted, is more detailed in this section which 7 provides for production of documentary evidence and 8 objects and Rule 17 specifically deals with 9 subpoenas. Subsection C involves for production of 10 documentary evidence and of objects and what 11 made -- Your Honor, perhaps the simplest thing 12 would have -- well, I have the copy of the text 13 here for you to read it and make a photocopy. 14 THE COURT: Let's do that and then I 15 can follow along. 16 MR. SUSSMAN: The other thing would 17 be Subsection H which, under more current rule, 18 specifically says that "Statements made by 19 witnesses or perspective witnesses may not be 20 subpoenaed from the government under this rule," 21 but goes on to say "but should be subject to 22 production in accordance with the provisions of a 23 different rule." 24 THE COURT: Read that again to me. 25 MR. SUSSMAN: "Statements made by 21 1 witnesses or perspective witnesses may not be 2 subpoenaed under Rule 17, but specifically says 3 that they should be subjected to production under 4 Rule 26.2." 5 THE COURT: I wonder whose witnesses 6 they are talking about, statements by your opponent 7 or your own, because if it's of your opponent, 8 that's what we have in Oregon in the discovery 9 statutes. 10 MR. SUSSMAN: Sure. We can make a 11 photocopy of Rule 26.2 for you as well. 12 THE COURT: Yeah, why don't you do 13 that. 14 MR. SUSSMAN: But it is Rule 26.2 15 applies to both parties, government and defense. 16 THE COURT: Let's make a copy of 17 that. 18 MR. TINTERA: I've got them right 19 here if you want to copy these. 20 MR. SUSSMAN: The reference you made 21 didn't seem to correspondence to what is -- 22 MR. TINTERA: Effective December 23 1st, 1993. 24 MR. SUSSMAN: Okay. 25 MR. TINTERA: If you want to just 22 1 copy these. 2 MR. SUSSMAN: I'm not sure that the 3 entire Section 26 is there. Well, that's fine. 4 We've got it. 5 While those are being photocopied, 6 let me address a comment as far as the case law 7 goes. The point that I would make is, or at least 8 the essence of the argument in the latter portion 9 of my memorandum involving the scope of the Oregon 10 statute is this, the Oregon statute on subpoenas is 11 not identical to or was meant to adopt wholesale 12 the federal rules, Federal Rule 17 on the 13 subpoenas, while Subsection 2 adopted the language 14 in and the procedure in U.S. Federal Rules of 15 Criminal Procedure 17C for production of those 16 documents, et cetera, pretrial. 17 The point of my argument is that 18 when you look at Spada and you look at the context 19 of the statute and the requirements of how that 20 should be read, it is not so limited as the federal 21 rules would limit the requirements for subpoenas to 22 trial and, therefore, to what can be subpoenaed 23 pretrial. 24 Now, taking Mr. Tintera's argument 25 in the federal case law on that point, the key test 23 1 that I think wasn't clearly articulated and is the 2 basis for those decisions was the decision in the 3 Supreme Court of the United States v. Nixon, 418, 4 1973 case, of course, involving the Nixon tapes. 5 The court there did replay certain threshold 6 requirements, not terribly dissimilar to what you 7 have done, and the court indicated there in 8 those -- those requirements indicated that the 9 documents that the person seeking them, to issue 10 the subpoena, had to make a showing that the 11 documents were evidentiary and relevant. That they 12 are not otherwise procurable reasonably in advance 13 of trial by the exercise of due diligence. That, 14 of course, is not something that you've required, 15 but it was something that was articulated in our 16 discussions, that Mr. Tintera doesn't have the 17 documents, could not get them from Intel and -- 18 THE COURT: In another kind of case 19 that might have been different, too, if there were 20 documents that existed that could be obtained from 21 another source, but we're talking about records 22 kept by Intel employees and kept at Intel. I've 23 not heard they are available anywhere else. 24 MR. SUSSMAN: The third is a party 25 cannot properly prepare for trial without 24 1 production of those documents and records. 2 And, finally, we have to make a good 3 faith showing that these are intended as basically 4 for this part, one for evidentiary, that they have 5 relevance and for evidentiary purposes. It's not 6 purely a fishing expedition. Of course, that's Mr. 7 Tintera's objection, that we're seeking to go 8 fishing on that. 9 What we have attempted to do in the 10 memorandum today is to provide to you the specific 11 articulable grounds for us showing that the 12 documents do exist, why we believe they are 13 relevant and what evidentiary basis they would 14 have. So even if we apply that kind of test that 15 would have been required in the federal courts, I 16 think we've met that in what we've offered to the 17 court. 18 THE COURT: Mr. Tintera, anything 19 else? 20 MR. TINTERA: Judge, counsel 21 correctly categorizes part of my argument as being 22 that they are just fishing and they just want these 23 things because they want to see if they are there 24 and just are curious about seeing what is there if 25 something is produced. But I object to them 25 1 expanding the scope of the statute into a discovery 2 statute and I don't think that was the intent of 3 the legislature. So it's really two things: One, 4 they are fishing. And, two, they want this to be a 5 discovery statute for things like well, I think 6 these people have them so I want them, too. 7 The legislature, I don't think, 8 expanded this into a third-party discovery statute. 9 I don't believe it gave a mandate to the court to 10 authorize third parties to be involved in the 11 criminal discovery process through this statute. 12 THE COURT: Okay. Well, I have to 13 read the memorandum. I've got your argument 14 written down and I'll take a look and decide. 15 THE COURT: We have the omnibus 16 hearing coming up when? 17 MR. TINTERA: December 20. Trial is 18 April 11. 19 THE COURT: I'll try to review this 20 and get something out to you with due diligence. 21 I'm not setting a particular time limit, but I want 22 to take a look at this. The issues you've raised 23 here are of no particular surprise to me and it's 24 what we've been dealing with all along. It is kind 25 of new ground. The only thing that I have thought 26 1 of that may be in addition to what I have announced 2 earlier is that Mr. Tintera probably will object to 3 this because it comes from the discovery case that 4 I've read, the requirements that I've made that I 5 think the defendant needs to show before the 6 materials could be produced pretrial under the 7 statute, in my mind, the language I've seen in some 8 of the cases, I don't recall them specifically now, 9 but they talk about to the extent possible that it 10 can be shown recognizing that you don't have 11 something, it's pretty hard to define it with any 12 certainty when you are trying to describe something 13 you can't see, you don't have, so necessarily, it's 14 a little vague. So I think that probably is a 15 qualifier that would apply even though that's a 16 standard that sometimes is announced when the 17 courts are looking at discovery requests in and 18 similar types of motions come up, motion for 19 protective order, motion to quash, that sort of 20 thing, so I think necessarily that is something 21 that probably applies there. 22 The other thing is that my initial 23 feeling is, again, that this statute wasn't 24 intended as a discovery statute. 25 I'm going to read your memo clear 27 1 through and take a look at it, but at this point, 2 at least, I haven't been convinced, but I haven't 3 read your memo in its entirety, either. 4 My impression as a trial judge, I've 5 said this before, you've probably both heard it 6 now, Judge Pihl says, and to some extent he's 7 right, trial judges are supposed to guess and be 8 right. We're not supposed to do a lot of legal 9 research. And one of the other theorems that Judge 10 Pihl's logic stands on frequently is that 11 fortunately most laws are reasonable and if you 12 scratch your head and ask yourself what's 13 reasonable here, usually you'll come to the right 14 conclusion. 15 The problems I've had in these types 16 of cases or similar issues in cases like this in 17 the past are, it seems like it is reasonable that 18 there needs to be some means by which defendants 19 can have access to that which they necessarily need 20 in order to prepare a defense, but there has to be 21 some line drawn beyond which we don't go. 22 I don't think that we have, here in 23 Oregon, a general free for all in discovery in 24 criminal cases by defendants of non-party 25 witnesses. I haven't seen that in any statute, nor 28 1 have I seen that in the case law where when I say a 2 general free for all, means you can make them bring 3 the whole house down to the courthouse and let them 4 look through it and all the papers and books. If 5 that's the case, we don't have that sort of 6 situation in Oregon. 7 Then the question is, what limits 8 are there on it? And the limits that I've come up 9 with previously in my feeling are -- seems to be 10 fair to both sides and it isn't in the statute, I 11 have to give an interpretation to it, but the 12 threshold issue, the threshold question that I've 13 required the defendant to show that I've announced 14 in a prior hearing, that is, I think its properly 15 set forth, Mr. Sussman, in your memo, that there is 16 a good faith belief that the books, papers, 17 objects, books, papers, whatever, records -- 18 MR. TINTERA: Documents, Judge. 19 THE COURT: Books, papers and 20 documents exist. I haven't said there that there 21 has to be a statement of certainty that they exist, 22 but a good faith belief that they exist. But there 23 needs to be some identification, would be the 24 second thing, something identifying them as books, 25 papers or documents and a statement of how those 29 1 books, papers or documents are admissible as 2 evidence in the case. Those sorts of questions to 3 be answered by the defendant in order to get books, 4 papers or documents would seem, in my mind, a fair 5 line of demarcation before I would authorize the 6 defendant to delve into the private books, papers 7 and documents of a non-party witness. 8 But I'll take a look at this and the 9 first thing that I'll do is initially see if I 10 believe that you've met the requirements that I've 11 set in the first part of the memo for production of 12 the books, papers and documents from the various 13 individuals that you want and if there is any of 14 them that I do not believe that you've met those 15 threshold questions, threshold standard or test 16 that I've set for production, then I'll take a look 17 to see if I want to reexamine the test that I've 18 given in this case. 19 Again, keep in mind that what I'm 20 doing here is deciding what this statute permits 21 and I don't intend at this point to announce what I 22 would permit the defendant to do insofar as 23 subpoenaing books, papers, records, documents or 24 any other sort of thing to any trial or hearing. 25 I'm not suggesting that my standard 30 1 would be different. I'm not suggesting that it 2 would be the same, either. I'm limiting to what 3 I'm doing right now to interpretation of this 4 particular statute that talks about pretrial, 5 prehearing disclosure by a non-party, by non-party 6 witnesses, apparently. With that, I'm done. 7 Unless you have something else. 8 MR. SUSSMAN: No, Your Honor. 9 MR. TINTERA: No, Your Honor. 10 THE COURT: Thank you. 11 MR. TINTERA: I would like you to 12 know, though, after I digest the memo, I may 13 respond in writing. I may not. But I will do that 14 by next Wednesday. 15 THE COURT: Okay. Why don't I say 16 if you are going to respond -- Friday is a 17 holiday -- why don't you say you can do it by 18 Thursday. If I don't have something by Thursday, 19 that will indicate that you are not doing it. 20 MR. TINTERA: Thank you, Your Honor. 21 22 23 24 25 31 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