Witness Preparation: Attorney-Client Privilege
and Work Product Challenges Reconciling the Demands of FRCP 26(b) and FRE 612(2)
When Preparing Witnesses for Deposition and Trial
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TUESDAY, JULY 24, 2012
Presenting a live 90-minute webinar with interactive Q&A
Robert L. Wise, Partner, Bowman and Brooke, Richmond, Va.
Steven C. Bennett, Partner, Jones Day, New York
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5 NYI-4385553v1
Witness Preparation: Attorney-Client
Privilege And Work Product Challenges:
FRCP 26 And Its Implications
July 2012
Strafford Publications
Steven C. Bennett
Jones Day –New York
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Presenter Background
Partner, Jones Day (New York office)
Commercial Litigation (20 years)
Member, New York State Bar Association Corporate
Counsel Committee
Adjunct Professor, New York Law School, Hofstra
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Disclaimers
The views expressed are solely those of the presenter,
and should not be attributed to the presenter’s firm or
its clients.
This presentation does not constitute legal advice; nor
does it constitute solicitation of an attorney/client
relationship.
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Agenda
Privilege and work product protection under
FRCP 26
Protecting core work product from disclosure under
FRE 612
Balancing rules
Best practices
References
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Overview
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General Elements To Establish
Attorney-Client Privilege
Legal advice sought
From professional legal advisor in that capacity
Communications made for that purpose
In confidence
By the client
At the client’s instance permanently protected
Unless the privilege is waived
United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D.
Mass. 1950)
11 NYI-4385553v1
Expert May Be Covered By
Attorney-Client Privilege
Employee of client
“Translator”
FRCP 26(b)(4)(B): exclusion of discovery, except:
– Exceptional circumstances
– Impracticable to obtain facts by other means
12 NYI-4385553v1
Work Product Doctrine
Protects information created in anticipation of litigation
– Generally, attorney’s mental processes
– Specifically, memoranda, analyses, etc. that attorney creates
Can apply to consultants engaged by counsel
Unlike attorney-client privilege, both the attorney and the client can claim it
Fed. R. Civ. P. 26(b)(3)
13 NYI-4385553v1
Expert May Be Covered
By Work Product
FRCP 26(b)(3)(a): materials created by or for a
party, including attorney or consultant
Anticipation of litigation (aid in preparation)
Not merely business advice
Consulting Experts
14 NYI-4385553v1
15 NYI-4385553v1
Range Of Functions
Document organization/analysis
Claim/defense preparation
Assist counsel with discovery/strategy
Assist counsel with negotiation, mediation, litigation
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Non-Traditional Expert
Media consultant
Jury consultant
Graphics artist
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Potential Problem Areas
Unretained expert
– Conflicts
– Unhelpful opinion
No privilege for identity of unretained experts
Consulting expert for one purpose; testifying expert
for other purpose
Treating physician (fact/opinion mixture)
– Cannot create privilege after-the-fact
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Thompson v. Haskell Co.,
1994 WL 597252 (M.D. Fla. 1994)
Claim for sexual harassment
Alleged depression
Plaintiff sees doctor; doctor creates report
Defense wants report to show mental state at time of
firing
Held: report must be produced
– No other source of comparable information
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Chiquita Int’l Ltd. v. M/V Bolero Reefer,
1994 WL 263603 (S.D.N.Y. 1994)
Failure in shipment of bananas
Expert surveys condition of cargo
Held: Expert has performed more than fact gathering
– Photos of cargo not discoverable, as defendant
had own photos
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Testifying Experts
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Attorney Communications With Expert
May Be Part Of What Expert “Considered”
Explanation of the case/what attorney wants
Documents selected for review
Comments on expert report
Terms of engagement/limits/fees
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Documents Provided To
Expert Lose Privilege
Advisory Committee Notes: Documents provided
are not privileged, even if expert does not rely on
them
Documents provided are subject to discovery. In re
Omeprazole Patent Lit., 2005 WL 818821 (S.D.N.Y.
2005)
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Documents Must Relate
To Expert’s Work
Define by subject matter of report. See American
S.S. Owners v. Alcoa S.S. Co., 2006 WL 212376
(S.D.N.Y. 2006)
Must bear some “probative relationship” to expert’s
opinion. See Oneida, Ltd. V. United States, 43 Fed.
Cl. 611 (Fed. Cl. 1999)
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Potential Problem Areas
Expert begins as non-testifying consultant; then is
asked to testify
Expert operates in firm that provides both testifying
and consulting service (for the same client)
Testifying expert relies on information from non-
testifying expert
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Attorney + Client + Expert
If expert is testifying, communication may not be
privileged
Beware testifying expert involvement in strategy
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Shooker v. Superior Court,
4 Cal. Rptr. 3d 334 (Cal. App. 2003)
Plaintiff designates himself as an expert in the case
Trial court orders discovery regarding conversations
with counsel
Plaintiff withdraws designation
Held: designation alone does not waive privilege
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Spoliation By Expert
FRCP 26(a)(2)(B) requires disclosure of information
“considered,” not only what ultimately forms basis
for opinion
“Adverse inference” or other sanction where expert
fails to preserve/produce information considered.
See Trigon Ins. Co. v. United States, 204 F.R.D. 277
(E.D. Va. 2001)
Expert need not retain every scrap of paper. Fidelity
Nat’l Title Ins. Co. v. Intercounty Nat’l Title Ins. Co.,
412 F.3d 745 (7th Cir. 2005)
FRCP 26
Amendments
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Amended Rule 26 (2010)
Add/clarify disclosure requirements for experts for
whom no report is required
“Limit” disclosure to “facts and data”
Some work product protection for drafts and
attorney-expert communications
29 NYI-4385553v1
Purposes Rule 26(a) amendments were proposed because:
– Many lawyers agree to not exchange drafts and
communications in particular cases
– Access to drafts and communications often increase the
expense of discovery, with minimal return (if any)
– The need to avoid reducing communications (and drafts) to
writing complicates the attorney-expert working relationship
and can increase cost
– The need for consulting experts increased with the introduction
of the current rule in 1993, in order to insulate testifying
experts, which creates inequities for clients that cannot afford
two experts
– Attorneys are less willing to use experts who do not have prior
testifying experience, for fear their attempts to train such expert
to testify will be misconstrued
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Text Changes
26(a)(2)(B)(ii)
– Old Rule: “data or other information considered
by the witness in forming [all opinions]”
– Revised Rule: “facts or data considered by the
witness in forming [all opinions]”
– Comment to revised rule makes clear change
intended to avoid disclosure of drafts and at least
some attorney-expert communications
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Text Changes
26(b)(4)(B)
– Draft reports and disclosures are protected as
work product
– Applies to any testifying expert
26(b)(4)(C)
– Communications between expert and attorney are
protected as work product
– Applies only to experts required to provide a
report
– Three exceptions: compensation, facts
considered, and assumptions
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Text Changes
26(a)(2)(C)
– Provides for disclosure of certain information for
experts not subject to report requirements
Subject matter of evidence under 702, 703, or 705
Summary of facts and opinions
– Comment suggests that disclosure need not
include facts unrelated to expert opinions
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Practical Implications
New rules only apply to federal cases.
New rules will probably be applied retroactively.
Consider stipulating with opposing counsel.
Only communications with Rule 26(a)(2)(B) experts
will receive work product protection;
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Practical Implications
Attorney communications with testifying experts who
do not prepare a report are discoverable.
Work product protection is not absolute.
Rule 612(b) of the Rules of Evidence still applies.
35 NYI-4385553v1
Practical Implications
Segregate your non-confidential communications
with testifying experts.
Failure to properly disclose a non Rule 26(a)(2)(B)
testifying expert may result in exclusion of the
expert’s testimony.
The new federal rules do not change attorneys’
ethical duties.
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Cases Interpreting New Rules Dongguk Univ. v. Yale Univ., 2011 WL 1935865 (D. Conn.
May 19, 2011) (hand-written notes still discoverable).
Sara Lee Corp. v. Kraft Foods, Inc., __ F.R.D. __, 2011 WL
1311900 (N.D. III. April 1, 2011) (denying motion to compel in
part by applying new “facts or data” language and revised rule).
Daugherty v. Amer. Express Co., 2011 WL 1106744 (W.D. Ky.
March 23, 2011) (applying amendments to case filed in 2008 as
“just and practical”).
CIVIX-DDI, LLC v. Metro. Regional Inform. Systems, Inc., __
F.R.D. __, 2011 WL 922611 (E.D. Va. March 8, 2011) (amended
rules apply to case filed on August 30, 2010).
Graco v. PMC Global, Inc., 2011 WL 666056 (D. N.J. Feb. 14,
2011) (analyzing revised rule).
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Cases Interpreting New Rules
Nat’l Western Life Ins. Co. v. Western Nat’l Life Ins. Co., 2011
WL 840976 (W.D. Tex. March 3, 2011) (limiting discovery under
new rule).
Crabbs v. Wal-Mart Stores, Inc., 2011 WL 499141 (S.D. Iowa
Feb. 4, 2011 (applying 26(A)(2)(C) to treating physicians).
Estate of Allison v. Vince Scoggins, P.A., 2011 WL 650383 (W.D.
N.C. Feb. 10, 2011) (applying revised rule and requiring a
privilege log).
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Best Practices
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40 NYI-4385553v1
Communication
Discuss role of expert
Discuss process:
– Information exchange
– Report drafting
– Discovery
Establish policy re: notes/communication with counsel
Beware “experienced” experts who don’t follow directions
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Maintain Protection Of
Consulting Expert
Route directions through counsel
Mark documents “privileged”
Keep track for privilege review/log
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Maintain Independence of
Testifying Experts
Expert should follow standard methods for inquiry
Attorney may describe available information, but
expert chooses what to review
Expert must be willing to defend opinion
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References
Bennett, Expert Discovery: What Is Discoverable?,
N.L.J., Dec. 11, 2006
Bennett, Explore Potential Of Expert Witness Work,
18:5 CPA Man. Partner Rep. 5
Witness Preparation: Attorney-Client
Privilege and Work Product Challenges:
The Role of FRE 612 in
Protecting Work Product
Robert L. Wise
Bowman and Brooke LLP
45
Firm Profile
Bowman and Brooke LLP is a nationally recognized trial firm with one of the
largest product liability practices in the country. The firm’s 185 attorneys
defend a variety of corporate clients, including many Fortune 500 and
internationally-based companies, in widely publicized catastrophic injury and
wrongful death matters, and in other complex litigation throughout all 50
states. Bowman and Brooke’s lawyers regularly represent their clients and try
cases in courthouses across the United States.
Complementing our national product liability defense practice, Bowman and
Brooke provides well-established litigation practice groups in commercial,
intellectual property, environmental, construction, consumer warranty and
healthcare litigation. The firm has offices in Minneapolis, Phoenix, Detroit,
San Jose, Los Angeles, Richmond, Columbia, Dallas and Austin.
46
Presenter Background
47
Co-Managing Partner (Richmond office).
Founding member of firm-wide Appellate and Trial
Support Practice Group.
Focuses on appeals and advance motions support,
class-action defense, product liability litigation, and
intellectual property litigation.
Member of DRI’s Appellate Advocacy and Diversity
Committees and director of the Virginia Association
of Defense Attorneys.
Issue
The selection and compilation of
documents as a means to prepare the
witness—is it work product?
48
Opinion Work-Product
The selection and compilation by counsel of documents
from a larger set of documents is opinion work-product.
Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.), cert. denied,
474 U.S. 903 (1985) (selection and compilation are
“highly-protected . . . opinion work-product”); see also In
re Allen, 106 F.3d 582, 608 (4th Cir. 1997); Shelton v.
Am. Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986);
but see In re San Juan duPont Plaza Hotel Fire
Litigation, 859 F.2d 1007, 1018 (1st Cir. 1988) (finding
attorney compilation unprotected).
See also 7 James Wm. Moore et al., Moore’s Federal
Practice § 26.70[2][b] n.15 (3d. ed. 2008).
49
Opinion Work-Product
Attorney compilations provide a window into counsel's mental
impressions about the case and which documents counsel
thinks are most relevant to a topic. Sporck, 759 F.2d at 316.
The Sporck court reasoned:
“In selecting and ordering a few documents out of
thousands counsel could not help but reveal important
aspects of his understanding of the case. Indeed, in a
case such as this, involving extensive document discovery,
the process of selection and distillation is often more
critical than pure legal research. There can be no doubt
that at least in the first instance the binders were entitled to
protection as work product.”
Id. (quoting James Julian, Inc. v. Raytheon Corp., 93 F.R.D.
138, 144 (D. Del. 1982)).
50
Scope of the Protection
Thus, Fed. R. Civ. P. 26 is always a first step, but
its protection is not absolute.
Protected materials, including those within a
compilation used to help prepare a witness for
deposition, may be discoverable if they are put to
a “testimonial use.” See, e.g., Nutramax Labs.,
Inc. v. Twin Labs, Inc., 183 F.R.D. 458, 463 (D.
Md. 1998).
51
Relevant Portions of Fed. R. Evid. 612
(a) Scope. This rule gives an adverse party certain options when a
witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to
have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. . . .
an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness about it, and to
introduce in evidence any portion that relates to the witness’s
testimony. If the producing party claims that the writing includes
unrelated matter, the court must examine the writing in camera,
delete any unrelated portion, and order that the rest be delivered
to the adverse party. Any portion deleted over objection must be
preserved for the record.
52
Relevant Portions of Fed. R. Evid. 612
• Rule 612 was amended in 2011, effective December
1, 2011.
• The Advisory Committee notes to the 2011
amendment explain the changes were “intended to be
stylistic only,” and there was “no intent to change any
result in any ruling on evidence admissibility.”
• Thus, all pre-amendment case law should remain
viable.
53
Scope of the Use of Rule 612 – Sword
Generally, the “before testifying” portion of Rule 612 applies to
depositions. Nutramax, 183 F.R.D. at 467 (applying Rule 612 to the
context of depositions); but see Omaha Pub. Power Dist. v. Foster
Wheeler Corp., 109 F.R.D. 615, 616-17 (D. Neb. 1986) (commenting
that Rule 612 does not apply to depositions).
Testimony from recollection refreshed by a review of a document before
the deposition can be deemed a “testimonial use” under Rule 612. See,
e.g., Nutramax, 183 F.R.D. at 467.
Therefore, any privilege or protection that might otherwise apply may be
waived by such testimonial use. Id.; see also In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., No. MDL 1358(SAS), 2012 WL
2044432 (S.D.N.Y. June 6, 2012) (noting “a tension is created between
the protection afforded by the [work-product] doctrine and Rule 612’s
provision that the ‘adverse party is entitled to have the writing produced
at the hearing’”). 54
Scope of the Use of Rule 612 – Shield
However, Rule 612 does not provide an automatic right to
all documents reviewed in preparation for the corporate
representative deposition.
Instead, while the compilation retains its protected status,
there may be an exception to the privilege when certain
documents are put to a “testimonial use.” Nutramax, 183
F.R.D. at 467.
But the party seeking production of such individual
documents must first lay a proper foundation. Id. at 468.
55
Rule 612 Foundational Requirements
Access will only be given to “those writings which
may fairly be said in part to have an impact upon the
testimony of the witness.” Id. (internal quotations
omitted); see also United States v. Sheffield, 55 F.2d
341, 343 (8th Cir. 1995) (“Rule 612 is not a vehicle
for a plenary search for contradicting or rebutting
evidence that may be in a file but rather is a means to
reawaken recollection of the witness to the witness's
past perception about a writing.”).
Rule 612 cannot be used “as a pretext for wholesale
exploration of an opposing party’s files.” Nutramax,
183 F.R.D. at 468. 56
Rule 612 Foundational Requirements
Deposing counsel must first show that the witness
used the particular document to refresh his or her
memory on a specific, relevant topic.
Second, deposing counsel must show that the witness
actually used the document for the purpose of
testifying.
If the requesting party cannot lay this two-step
foundation, the documents need not be produced.
Nutramax, 183 F.R.D. at 468.
57
Rule 612 Foundational Requirements
If the two-step foundation can be met, there is still another
element that must be addressed. Audiotext Commc'ns
Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250, 252
(D. Kan 1996).
Rule 612(2) provides that the deposing party must also
show, and the court must find, that the “interests of
justice” support production of the document used to
refresh recollection. Nutramax, 183 F.R.D. at 468.
This element requires a “balancing test to weigh the
policies underlying the work product doctrine against the
need for disclosure to promote effective cross-
examination and impeachment.” Id.
58
Rule 612 Foundational Requirements
(“Interests of Justice”) The Nutramax court provided nine illustrative, but not
exhaustive, factors for a court to consider:
59
(1) status of the witness—for example,
fact, expert, or corporate representative;
(2) nature of the issue in dispute;
(3) when the events took place;
(4) when the documents were reviewed;
(5) the number of documents reviewed;
(6) whether the witness prepared the
documents reviewed;
(7) the extent to which the
documents contain “pure” attorney
work product;
(8) whether the documents had
been previously disclosed; and
(9) whether there are legitimate
concerns regarding destruction of
the documents.
Id. at 469–70.
Rule 612 Foundational Requirements
(“Interests of Justice”)
Applying this analysis on a case-by-case basis,
the Nutramax court ultimately found that the
interests of justice favored ordering production of
some of the individual documents.
“[T]here is greater need to know what materials
were reviewed by expert and designee witnesses
in preparation for deposition since the substance
of their testimony may be based on sources
beyond personal knowledge.” Id. at 469.
60
Practical Uses and Defenses
The issue can arise several ways, for example:
Sometimes, the deposition notice will contain a
blanket request for all documents reviewed in
preparation for the deposition; or
The deposing party may, as in Sporck, request
production of all preparation materials at the
outset of the deposition, prior to laying any
foundation or asking any substantive questions.
Under the Sporck/Nutramax line of cases, either
approach is improper. 61
Practical Uses and Defenses
In a jurisdiction following Sporck, any pre-deposition
document request for the compilation of materials
used in preparation should be objected to as asking
for protected work product, possibly with a motion
for protective order as well.
However, it is important to distinguish between
disclosure of the individual compiled preparation
materials themselves, and disclosure of the contents
of a compilation as a compilation.
This strategy was used in Frazier v. Ford Motor Company, No. 4:05CV04077, 2008 WL 4809130
(W.D. Ark. Oct. 31, 2008). 62
Practical Uses and Defenses
The Frazier court sustained the objection to the
requested blanket production of all preparation materials,
as it was observed that the production would require
Ford to tell plaintiff's lawyers which documents, of those
already produced, Ford's lawyers deem significant.
The court reasoned:
“While it is the task of Ford’s lawyers to prepare
their witnesses to testify, it is the task of the
plaintiff’s lawyers to select the documents about
which they wish to inquire. The rules do not
contemplate that Ford’s lawyers must assist the
plaintiff’s lawyers in selecting documents about
which to inquire during a deposition.”
63
Practical Uses and Defenses
Likewise, in a Sporck jurisdiction, a comprehensive
request during the deposition itself without a proper
foundation first being laid should likewise be met with
an objection.
In Sporck, 759 F.2d at 313-14, plaintiff's counsel
attempted to elicit the identification and production of all
documents examined or referred to by Charles Sporck in
preparation for his deposition.
Defense counsel objected and plaintiff moved to compel.
The Third Circuit noted that the request was premature.
64
Practical Uses and Defenses
The Sporck court noted:
“In seeking identification of all documents reviewed
by petitioner prior to asking petitioner any questions
concerning the subject matter of the deposition,
respondent’s counsel failed to establish either that
petitioner relied on any documents in giving his
testimony, or that those documents influenced his
testimony. Without eliciting that testimony, there
existed no basis for asking petitioner the source of
that testimony.”
Id. at 318 (internal citation omitted; emphasis added).
65
Practical Uses and Defenses Check all local rules and the law of the jurisdiction.
Any premature attempt to use Rule 612 as a means to
defeat privilege must be met with an objection.
The party seeking such materials must then seek to lay
the proper foundation for each document requested.
Specific questioning, implicating particular documents,
is required. Sporck, 759 F.2d at 318; see also Stone
Container Corp. v. Arkwright, No. 93 C 6626, 1995 WL
88902 (N.D. Ill. Feb. 28, 1995).
If deposing counsel fails to lay the foundation properly,
defending counsel should instruct the witness not to
answer. See Fed. R. Civ. P. 30(c)(2).
66
Recent Case Law Tattletale Portable Alarm Sys, Inc. v. Calfee, Halter & Griswold
LLP, No. 2:10-cv-226, 2012 WL 2062648 (S.D. Ohio June 7,
2012):
Company president reviewed time line prepared by company’s counsel to
refresh his recollection of dates in preparation for deposition.
Magistrate judge compelled production of the time line. 276 F.R.D. 573
(S.D. Ohio 2011).
District judge sustained company’s objection, holding that “[b]ecause this
document directly reflects the opinion of plaintiff’s counsel, it is not
subject to disclosure.”
Court also rejected notion that use in refresh memory waived privilege.
67
Recent Case Law In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig.,
No. MDL 1358(SAS), 2012 WL 2044432 (S.D.N.Y. June 6,
2012):
Defense expert reviewed and read from a chart containing summary of all
defense experts’ opinions during his deposition.
Court noted the tension between work-product protections and Rule 612
when the witness uses the work product to refresh his or her recollection.
Court discussed the differing approaches but favored a “balancing test to
determine whether Rule 612 requires disclosure, notwithstanding the
existence of a privilege.”
Rejected a bright-line rule of mandatory production.
68
Recent Case Law Brown v. Tethys Bioscience, Inc., No. 3:1 IMC 11, 2011 WL
4829340 (E.D. Va. Oct. 11, 2011):
Plaintiffs’ subpoenaed “any and all documents [the witness] brought to
[his] deposition.” Defendant did not object to the production of non-
privileged documents, but objected to production of two documents on
attorney-client and work-product grounds. Plaintiff did not challenge
their protected status, but argued they were put to testimonial use,
requiring production under Rule 612.
Court largely followed Nutramax and held that plaintiffs bore the burden
to show the documents were put to a testimonial use. Court applied many
factors under Nutramax and others cases.
In granting the motion to quash the subpoena, the court ruled that
plaintiffs failed to carry their burden and that their allegations of
purported testimonial use were “conclusory” and failed to show the
documents had “an impact upon the testimony of the witness.”
69
Recent Case Law In re Yasmin & Yaz (Drospirenone) Mktg. Sales Practices &
Relevant Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF,
2011 WL 2580764 (S.D. Ill. June 29, 2011):
Defense objected to questioning designed to elicit the identity of
documents compiled by defense counsel and reviewed by the witness in
preparation for deposition.
Court surveyed law and purported to follow Sporck in refusing to require
disclosure of the compilation.
However, court held that “[i]dentification of the document or materials
that a witness reviewed prior to his or her deposition—without
designating which, if any, of the documents were selected by counsel—
does not implicate the same work-product concerns . . . .”
Court also ruled that “Rule 612 is not intended to be used as a general
discovery device.” Applied Sporck procedure.
70
Recent Case Law Other recent cases:
Greenwood Realty, Inc. v. Action Realty, Inc., No. 8:09-cv-02683-JMC,
2011 WL 652531 (D.S.C. Feb. 15, 2011) (applying Nutramax and
ordering production of mediation presentation used by witness to refresh
recollection in preparation for deposition);
In re Managed Care Litig., 415 F. Supp. 2d 1378 (S.D. Fla. 2006)
(applying multifactoral Nutramax test to hold that mere review of an
attorney-client privileged document to refresh the deponent’s recollection
before testifying did not waive the privilege).
71
Ethical Considerations
Fed. R. Civ. P. 11/Fed. R. Civ. P. 37
Model Rules of Prof'l Conduct R. 3.1 (1983)
Model Rules of Prof'l Conduct R. 3.4 (1983)
72
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