EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, January 28, 2008

Refreshing Decision: Court Finds Documents Used To Refresh Recollection Not Protected Under Work Product Privilege

The United States District Court for the Northern District of Illinois recently addressed an interesting evidentiary issue in Reed v. Advocate Health Care, 2008 WL 162760 (N.D. Ill. 2008):  Is a party is entitled to discover documents which were used by opposing counsel to refresh the recollection of witnesses?  In Reed, nurses brought a class action lawsuit against the owners and operators of hospitals in the Chicago Metropolitan Area, claiming, inter alia, that they conspired among themselves and with other hospitals in the Chicago area to depress the compensation levels of registered nurses. See id

The plaintiffs claimed that Michael Shankman, the attorney for Advocate Health Care, one of the defendants, "improperly coached" Advocate's Vice President of Compensation and Benefits and Advocate's Director of Compensation during their depositions. Id. at *1.  Specifically, the plaintiffs claimed, inter alia, that Shankman became afraid that these witnesses "would not follow their rehearsed scripts" during their deposition testimony and thus supplied them "with a copy of a law review article 'containing a road map for the defense to win this very case.'" Id.

The plaintiffs accordingly argued that any materials such as the law review article which Shankman showed to the witnesses during their depositions were writings used to refresh their memories under Federal Rule of Evidence 612.  Because Rule 612 indicates that writings used in this manner must be produced to opposing counsel, the plaintiffs argued that the defendants had to produce the documents.

The defendants countered that defense counsel's selection of these materials constituted work product and that they thus were protected by the work product privilege.  If the work product privilege were applicable, the court could only order the defendants to produce them if it found that disclosure was in the interests of justice.

The court noted that there was mixed precendent on the issue but decided to side with cases such as James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982).  In Raytheon Co., the "court held that a binder of documents used for witness preparation constituted work product because the selection and compilation revealed important aspects of counsel's understanding of the case, but that the use of the binder to refresh the witness's memory prior to testifying constituted a waiver of the protection." 

I agree with this analysis and think that a party using documents to refresh witness' recollection and then claiming the work product privilege is attempting to use the privilege as both a sword and a shield, resulting in waiver. See Sauer v. Burlington Northern Railroad Co., 169 F.R.D. 120, 123 n.3 (D. Minn. 1996).  Furthermore, it seems clear that a party using documents to refresh witness' recollection could always claim that the documents are protected by the work product privilege because the selection of those documents would always reveal important aspects of counsel's undestanding of the case.  Thus, courts finding documents non-waiver of the work product privilege in these circumstances are essentially rendering Federal Rule of Evidence 612 meaningless.



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