THE COURTS

[234 PA. CODE CH. 5]

Charges for Copying Discovery Material

[32 Pa.B. 6248]

   The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule 573 (Pretrial Discovery and Inspection) to clarify that the attorney for the Commonwealth cannot charge the defendant for the costs of copying discoverable materials but the attorney, on a case-by-case basis, may request from the trial judge an order requiring the defendant to pay the copying costs. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed Comment revision precedes the Report. Additions are shown in bold.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,

Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 800
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@supreme.court.state.pa.us

no later than Tuesday, January 21, 2003.

By the Criminal Procedural Rules Committee

JOHN J. DRISCOLL,   
Chair

Annex A

TITLE 234.  RULES OF CRIMINAL PROCEDURE

CHAPTER 5.  PRETRIAL PROCEDURES IN COURT CASES

PART F.  Procedures Following Filing of Information

Rule 573.  Pretrial Discovery and Inspection.

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Comment

   This rule is intended to apply only to court cases. However, the constitutional guarantees mandated in Brady v. Maryland, 373 U.S. 83 (1963), and the refinements of the Brady standards embodied in subsequent judicial decisions, apply to all cases, including court cases and summary cases, and nothing to the contrary is intended. For definitions of ''court case'' and ''summary case,'' see Rule 103.

   The attorney for the Commonwealth should not charge the defendant for the costs of copying pretrial discovery materials. However, nothing in this rule is intended to preclude the attorney for the Commonwealth, on a case-by-case basis, from requesting an order for the defendant to pay the copying costs. In these cases, the trial judge has discretion to determine the amount of costs, if any, to be paid by the defendant.

*      *      *      *      *

   Official Note: Present Rule 305 replaces former Rules 310 and 312 in their entirety. Former Rules 310 and 312 adopted June 30, 1964, effective January 1, 1965. Former Rule 312 suspended June 29, 1973, effective immediately. Present Rule 305 adopted June 29, 1977 and November 22, 1977, effective as to cases in which the indictment or information is filed on or after January 1, 1978; Comment revised April 24, 1981, effective June 1, 1981; amended October 22, 1981, effective January 1, 1982; amended September 3, 1993, effective January 1, 1994; amended May 13, 1996, effective July 1, 1996; Comment revised July 28, 1997, effective immediately; Comment revised August 28, 1998, effective January 1, 1999; renumbered Rule 573 and amended March 1, 2000, effective April 1, 2001; Comment revised          , 2003, effective          , 2003.

Committee Explanatory Reports:

   Report explaining the proposed Comment revision concerning costs of copying discovery materials published at 32 Pa.B. 6249 (December 21, 2002).

REPORT

Revision of the Comment to Pa.R.Crim.P. 573

Charges for Copying Discovery Material

   The Committee received an inquiry from the Supreme Court's Common Pleas Automation Project¹ staff asking if the Criminal Rules should address whether the attorney for the Commonwealth may charge a fee to the defendant for the copying costs associated with discovery materials. They pointed out that this practice occurs in several judicial districts, and they could find nothing in the Criminal Rules specifically permitting this practice. As a result, there is no uniformity in procedures concerning whether and how these copying costs are assessed. The Committee agreed this issue merited consideration and that addressing it in the Criminal Rules would promote the Court's goals of statewide uniformity.

   Rule 573 (Pretrial Discovery and Inspection) provides the procedures governing discovery in court cases. Paragraphs (B)(1) and (B)(2)(a) provide for ''the defendant's attorney to inspect and copy or photograph'' discoverable information. The Committee researched the history of Rule 573, but found nothing concerning the provisions for copying and who should be responsible for paying the costs of copying discovery material that was helpful to this inquiry.²

   Agreeing the Criminal Rules should address the issue, the Committee members were divided on whether the attorneys for the Commonwealth should be permitted to charge the defendants for the costs associated with the copying of discoverable materials. Some members felt strongly that defendants should not be required to pay the costs of copying any discovery materials, especially mandatory discovery; other members thought the attorneys for the Commonwealth should not carry the burden of paying these costs in all cases. Ultimately, the members reached a compromise position and agreed generally that the attorney for the Commonwealth cannot charge a defendant for the costs of copying discovery materials, but a judge may order the defendant to pay the costs in a specific case. Accordingly, the Committee is proposing that the Rule 573 Comment be revised to explain that 1) the attorney for the Commonwealth cannot assess a fee against the defendant for the costs of copying discovery materials, but on a case-by-case basis, the attorney may request the trial judge to order costs charged against the defendant, and 2) the judge has the discretion to determine the amount to be paid by the defendant.

[Pa.B. Doc. No. 02-2265. Filed for public inspection December 20, 2002, 9:00 a.m.]

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¹  The Supreme Court is in the process of developing a statewide automation system for the criminal divisions of the courts of common pleas. As part of this process, the Committee has been working with the project staff to ensure the automation system and the criminal rules are consistent.

²  We also looked at other jurisdictions and found some courts permit the practice of assessing copying costs for discovery against defendants. See, e.g., U.S. v. Freedman, 688 F.2d 1364 (C.A. 11 1982) and U.S. v. Green, 144 F.R.D. 631 (1992). See also State v. Williams, 678 So.2d 1356 (Fl. 1996), in which the court held, inter alia, the defendant has the burden of paying the costs of copying discoverable materials.

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