Sunday, March 2, 2008
Blending In: Court Finds That Documents Used To Refresh Witness' Recollection Must Be Produced In Blender Patent Dispute
My wife and I are currently trying to decide on what blender to purchase because she recently got Jessica Seinfeld's cookbook "Deceptively Delicious," and she wants a heavy duty machine that can make all of the book's recommended purees. Of course, Seinfeld's cookbook has caused an interesting legal battle as Missy Chase Lapine has claimed that Jessica's cookbok plagiarized from her own puree cookbook "The Sneaky Chef" and that Jessica's husband, Jerry, slandered her by calling her a "wacko." While researching blenders, however, I came across another lawsuit with an intersting evidentiary ruling.
Apparently, in 1994, blender maker Vita-Mix got a patent entitled "Method of Preventing the Formation of an Air Pocket in a Blender." According to Vita-Mix, competitor Back to Basics infringed on this patent in the creation of its own blenders. During a deposition in the patent infringement case, "Thomas E. Daniels, Jr. testified on behalf of [the] defendant...." Vita-Mix Corp. v. Basic Holdings, Inc., 2008 WL 495781 at *2 (N.D. Ohio 2008). When Vita-Mix's counsel attempted to ask what documents were shown to refresh his recollection so that he could testify, defense counsel instructed Daniels not to answer. See id. Daniels thus did not describe the contents of the documents that he was shown, but he did testify that he was given a stack of documents "several inches tall." Id.
Vita-Mix thus moved to compel the production of these documents, or, in the alternative, that Daniels' testimony be stricken pursuant to Federal Rule of Evidence 612, which states in relevant part that "if a witness uses a writing to refresh memory for the purpose of testifying, either--
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness."
The court granted Vita-Mix's motion finding that the case before it was "a complex intellectual property dispute" and that "it would be unfair to expect it to be able to adequately cross-examine Mr. Daniels without knowing which documents refreshed his recollection and formed the basis for the corporation's knowledge on certain matters." Id. at *4. The court also pointed out that the defendant had not raised an issue which has split courts across the country (and which I have addressed before): whether, Federal Rule of Evidence 612 notwithstanding, documents used to refresh a witness' recollection is covered by the work product privilege?