‘Open file” access is an increasingly employed method of criminal discovery wherein the prosecutor will afford defendant counsel access to the entire investigative file rather than make a more specific and limited presentation of exculpatory or otherwise discoverable material. While the practice can, indeed, be a blessing to the industrious defense lawyer, it is not without serious concerns, a few of which are considered below.
A civil litigator finds documents in the plaintiff-client’s files that are disturbingly damaging to the claim. If the lawyer has any argument on which to oppose production, he or she will resist it through all reasonable means. A privilege log may provide additional comfort if “privilege” is the ostensible grounds for the withholding.
