Documents Reviewed Before Testimony: Protected Work-Product Or Discoverable Refreshed-Recollection?

"What documents did you review to prepare for your deposition?" It is among the most commonly asked questions at the outset of depositions. And yet, whether the answer is permissible or privileged turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory.

On the one hand, a lawyer's selection of documents for a client to review reflects that lawyer's opinion about what is or is not important. Indeed, since Hickman v. Taylor, 329 U.S. 495 (1947), courts have recognized the protection of information that displays an attorney's impressions or opinions. On the other hand, the rules of evidence provide that any writing used to refresh a witness' recollection (about which he or she testifies) should be produced.

So what happens when a witness looks at documents (or a group of documents) selected by his lawyer but used to refresh his recollection before testifying? Can these competing principles—protecting the privacy of attorney preparation versus the identity of documents that refresh a witness' memory—be harmonized?  

California Law: The Attorney Work-Product Doctrine and Evidence Code Section 771

Kerns Construction Co. v. Superior Court, 266 Cal. App. 2d 405 (1968) examined the interplay between Evidence Code sections 771 (refreshed memory) and the attorney work-product doctrine. California Evidence Code section 771, subdivision (a) provides that, "if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken." 

The plaintiff in Kerns allegedly suffered an injury from a gas explosion. Kerns Construction Company (Kerns) was sued along with other co-defendants, and Kerns deposed a witness who worked for the gas company when the explosion occurred. Id. at 408. The witness testified to having prepared investigation and accident reports. Id. The witness further acknowledged that he had "no memory ... independent of the reports." Id. However, when the deposing attorney requested the reports' production, the gas company refused on the ground it would violate the attorney-client privilege and work-product doctrine. Id. at 408-09. 

The Kerns Court agreed the reports were protectable under the attorney-client privilege and work-product doctrine. But when the witness relied on them to provide deposition testimony, it presented a "conflict between a liberal interpretation required under our own rules of discovery and the liberal construction in favor of the exercise of the attorney-client privilege." Id. at 412. The Court decided that any privileges were waived once the witness relied on them to provide testimony:

The witness had his reports, which he had previously prepared, in his possession at the time he testified and, additionally, made reference to them in order to answer questions propounded to him on the cross-examination. Having no independent memory from which he could answer the questions; having had the papers and documents produced by Gas Co.'s attorney for the benefit and use of the witness; having used them to give the testimony he did give, it would be unconscionable to prevent the adverse party from seeing and obtaining copies of them. We conclude there was a waiver of any privilege which may have existed.

 Id. at 410 (italics added). 

With respect to the work-product privilege, the Court explained "the privilege rested with the attorney and was waived by the attorney when he produced the reports to the witness upon which to premise his testimony. The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document from which he testified." Id. at 411. 

Following Kerns, Sullivan v. Superior Court, 29 Cal. App. 3d 64 (1972) examined whether any document used to refresh a witness' testimony must be produced pursuant to Section 771. The plaintiff in Sullivan had an initial interview with her lawyer, which her lawyer tape recorded. Id. at 67. The lawyer's secretary then transcribed the interview, and the plaintiff testified at deposition that she reviewed the transcription to refresh her memory. Id. Defense counsel requested the transcription be produced, and the plaintiff's counsel objected on ground that it was protected by the attorney-client privilege. Id. at 67-68. 

 The Sullivan Court distinguished itself from Kerns in a couple ways. First, the witness in Kerns testified from the reports without objection. Id. at 72. In Sullivan, the plaintiff's counsel raised the objection immediately. Id. Second, and more importantly, the Sullivan Court distinguished a client-interview transcription from the "writings" identified in Section 771:

The various statutes may be harmonized by holding that the word "writing" in section 771 was never intended to mean a transcription of a client's original discussion with her attorney concerning an accident as to which she is employing his legal services. 

Id. 

The Sullivan Court reasoned this was a material distinction: "[H]ad the client refreshed her memory by listening to a replaying of the tape instead of reading its transcription, no claim could be made that she had waived the confidential relationship between her and her counsel. Nor could such a claim be made if her attorney had told her what she had told him originally or even read to her his notes of the interview." Id. (italics added). 

International Ins. Co. v. Montrose Chemical Corp., 231 Cal. App. 3d 1367 (1991) examined the required foundation to trigger a document production under Section 771. Montrose was an insurance indemnification dispute related to hazardous waste at various Montrose locations. During the deposition of a former claims adjuster, the witness testified that he reviewed various documents prior to his deposition. The witness explained that "after his review, he had a 'fresher recollection of what had taken place' than he had prior to the session." Id. at 1372. The witness further "explained that, without all of the documents in front of him, he could not recall which ones actually refreshed his recollection and which did not, and that 'anything [he] looked at probably gave [him] some benefit of refreshing [his] recollection.'" Id.

Montrose cited Section 771 and moved to compel the production of documents reviewed by the witness. International refused and argued that Section 771 "'does not authorize wholesale demands for every document a witness might have seen' and, therefore, inspection is justified only when the examining attorney establishes which 'particular writing' the witness has used to refresh his recollection on a 'particular subject' included in the witness' testimony." Id. The Montrose Court held that this "is not the law in California." Once the witness testified that anything he looked at probably gave him some benefit, Section 771 was triggered:

Under the plain language of Evidence Code section 771, [the witness] used the documents to refresh his memory with regard to his testimony concerning International's payment of his attorney's fees and International therefore became obligated to produce them. No further "foundation" was required and, in this context, there was no need (and there was no way) to establish which of several documents actually refreshed [the witness'] memory on a particular point.

Id. at 1372-73. 

Federal Law: The Attorney Work-Product Doctrine and Rule 612 

Federal Rule of Evidence 612 provides in relevant part:

[W]hen a witness uses a writing to refresh [his] memory ... (2) before testifying, if the court decides that justice requires ... (b) ... 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 into evidence any portion that relates to the witness' testimony.

 Among the issues that federal courts have struggled with is the level of foundation to trigger Rule 612. In Sporck v. Peil, F. 2d 312 (3rd Cir. 1985), for example, the Third Circuit identified a three-step foundational requirement. Sporck was a securities fraud case where the defendant-petitioner Charles Sporck and others were accused of artificially inflating the value of certain stocks. Id. at 313.

Prior to Sporck's deposition, his lawyers showed him various documents. While none of the documents contained attorney work-product themselves, his lawyers contended that "the selected documents represented, as a group, counsel's legal opinion as to the evidence relevant both to the allegations in the case and the possible legal defenses." Id. The Court held that revealing the documents as a group would reveal the defense counsel's mental impressions and thus constituted attorney work product. Id.

The Court next analyzed whether Rule 612 compelled their production. The Court determined that three conditions must be met to trigger Rule 612: (1) a witness must use the writing to refresh his memory, (2) the witness must use the writing for the purpose of testifying, and (3) the court must determine that production is necessary in the interests of justice. Id. at 317.

Turning to the facts of the case, the Court determined that the deposing attorney failed to establish the first two conditions: "[The lawyer] failed to establish either [1] that petitioner relied on any documents in giving his testimony, or [2] that those documents influenced his testimony. Without first eliciting the testimony, there existed no basis for asking [Mr. Sporck] the source of that testimony." Id. at 318, citing Bercow v. Kidder, Peabody & Co., 39 F.R.D. 357 (S.D.N.Y. 1965).  

Sporck's three-condition test has been applied beyond the Third Circuit. In Nutramax Laboratories, Inc. v. Twin Laboratories, Inc., 183 F.R.D. 458 (D. Md. 1998), the district court in Maryland provided an expanded discussion of its application. Nutramax was a patent infringement lawsuit where the start date of product sales was at issue. To test the accuracy of certain plaintiff witnesses, defense counsel asked whether they reviewed any documents to help refresh their memories as to when certain sales began. Id. at 460. Although the witnesses acknowledged that documents had been reviewed with the plaintiff's lawyers, they were instructed not to answer any questions designed to discover the documents' identity. Id. 

In a lengthy ruling, the district court endorsed Sporck's three-condition test to trigger Rule 612. Nutramax, 183 F.R.D. at 468. If the first two foundational elements are met, "it may safely may be concluded that the documents have been put to a testimonial use...." Id. If the documents reviewed would otherwise be protected by the attorney work-product doctrine, Nutramax held that Rule 612 "requires the court to apply a balancing test designed to weigh the policies underlying the work-product doctrine against the need for disclosure to promote effective cross-examination and impeachment." Id., citing James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 145 (D. Del. 1982). When applying this balancing test, the Nutramax court identified nine non-exhaustive factors to be considered:

(1) "The status of the witness.... There is a 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 their personal knowledge." 

(2) "The nature of the issue in dispute. Whether a witness is testifying generally about the transactions which are the subject of the litigation, or more precisely about a subset of facts which relate to a case dispositive issue ... may affect the need to know what materials were reviewed to prepare for deposition." 

(3) "When the events took place.... The greater the passage of time since the events about which the witness will testify, the more likely that the witness needed to refresh his or her recollection to prepare for testimony." 

(4) "When then the documents were reviewed.... The nearer the review of documents to the date of the deposition may affect whether the court concludes that the purpose was to prepare for testimony." 

(5) "The number of documents reviewed.... If an attorney has culled through thousands of documents to identify a population of several hundred which are most relevant to the litigation, and the witness reviews these documents to prepare for the deposition, a court may be less inclined to order the production of such work product than if the witness reviewed a single document, or very few documents, selected by the attorney which relate to a critical issue in the case." 

(6) "Whether the witness prepared the document(s) reviewed. If the witness prepared the document(s) reviewed in preparation for the deposition, particularly if they were prepared in the ordinary course of the events underlying the dispute, and not in anticipation of litigation, there may be a greater need for disclosure than if the witness reviewed the documents."

(7) "Whether the documents reviewed contain, in whole or part, 'pure' attorney work product, such as discussion of case strategy, theories or mental impressions, which would require redaction or favor nondisclosure." 

(8) "Whether the documents reviewed previously have been disclosed to the party taking the deposition, as part of a Fed. R. Civ. P. 34 document production, or otherwise. It may be argued that, if the deposition attorney already has received the documents during the litigation, there is no reason to order their production a second time ... [However,] [f]inding the critical documents in a population of thousands may be like looking for a needle in a haystack, even with the aid of modern technology."  

(9) "Whether there are credible concerns regarding manipulation, concealment or destruction of evidence. If the court believes that there may have been inappropriate conduct affecting either testimonial or documentary evidence in the case, and the documents demanded under Rule 612 relate to these concerns, then disclosure may be required." 

Id. at 469-70.  

Not all federal courts have endorsed Sporck or Nutramax. For example, in Frazier v. Ford Motor Co., 2008 WL 11342570 (W.D. Ark.), the plaintiff served a deposition notice pursuant to Federal Rule of Civil Procedure 30(b)(6) to depose the Ford witness (or witnesses) with knowledge of its "roll sensing technology." Id. at *2. The deposition notice included a request for the production of documents "reviewed or relied upon by each witness[es] and or designated corporate representative in preparation for the deposition or to refresh their recollection on the topic chosen." Id. 

Ford objected on the ground that "many of these documents have already been produced and that the specific documents reviewed and relied by each corporate witness prior to his or her deposition may be protected by the attorney work-product doctrine...." Id. at *2. Ford relied on Sporck and Nutramax, but the court found their reasoning "unpersuasive" because it "assume[d] that the revelatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work-product." Id. at *3, citing In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018 (1st Cir. 1988). The trial court, accordingly, ordered Ford to produce the requested documents as long as the documents themselves were not protected by an applicable privilege. Id.

In a holding similar to Frazier, In Re Pradaxa Products Litigation, 2013 WL1776433 (S.D. Ill) considered the attorney work-product doctrine's application when the attorney voluntarily discloses that all documents reviewed by a witness were selected by counsel. In Pradaxa, the plaintiffs requested a "list of all documents reviewed" by various witnesses prior to their depositions. Id. at *1. The defendants filed a motion for a protective order and, in their motion, "voluntarily disclosed that all of the documents reviewed by the company witnesses will have been selected by counsel." Id. (italics in original). The trial court thus framed the issue as follows: "[W]hether counsel can manufacture a zone of privacy by gratuitously disclosing that the requested documents have or will be selected by counsel." Id.

To answer this question, the Pradaxa court examined the Sporck decision where counsel had likewise volunteered the fact that all of the documents reviewed by the witness were selected by counsel. Id., citing Sporck 759 F. 2d at 314. And while the Spork majority did not attach any significance to the fact that the witness' lawyer had voluntarily disclosed the work-product information, the dissent was certainly troubled by this:

To permit this volunteered information to provide a necessary link to attorney's thought processes, as the majority has done, is to permit the petitioner to cloak the non-work product aspects of the information sought with work product protection. Certainly an attorney cannot cloak a document under the mantle of work product by simply reviewing it. It is difficult to see how an attorney or his witness may insulate the discoverable fact that the witness reviewed a particular document by volunteering that the attorney selected the document for deposition preparation purposes. 

 Id. at *2, citing Sporck, 759 F. 2d at 319-20 (dissent). 

The Pradaxa court agreed the attorney work-product doctrine protects an attorney's selection and compilation of records in preparation for a deposition. "Disclosure of such material could reveal an attorney's thought processes and therefore should be afforded work-product protection." Id. at *3. The consequence of this rule is that "[o]pposing counsel ... should not be permitted to inquire as to which, if any, of the documents a witness reviewed were selected by his or her counsel." Id. However, this does not mean that an attorney "can manufacture a zone of privacy by voluntarily offering information regarding who selected the documents reviewed by a witness." Id. Accordingly, the court ruled that "[e]ither party should be allowed to know what documents a witness reviewed prior to a deposition for purposes of efficacy. Neither side [however] will be permitted to ask which, if any, of the documents reviewed were selected by counsel." Id. With respect to the fact that the defendant's counsel voluntarily disclosed their attorney work-product, "they brought such a consequence on themselves." Id. 

 Conclusion 

For such a standard deposition question, the law is both complex and varied among the courts. Where else can practitioners find cases where asserting the attorney work-product doctrine constitutes its simultaneous waiver? Understanding these cases and rules can help practitioners compel the documents they want while protecting the documents they guard. 

David Sugden is a shareholder at Call & Jensen. He can be reached at [email protected].