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Univ. of South Carolina School of Law

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Sunday, September 28, 2008

WAMU In D.C.: D.C. Court Of Appeals Finds Document Not Discoverable Because It Wasn't Used To Refresh Witness' Recollection

Earlier, I wrote a post about a federal court in Illinois which held that an attorney cannot use documents to refresh a witness' recollection and then claim that the document is entitled to work product protection.  The post also noted that there is some precedent to the contrary on the issue, with some courts holding that the work product protection should not be breached in such situations.  Well, the recent opinion of the D.C. Court of Appeals in Clampitt v. American University, 2008 WL 4346424 (D.C. 2008), does not fall into either of these camps, but it does clarify that for the protection to be breached, the document at issue needs to be used to refresh the witness' recollection.

In Clampitt, after Susan Clampitt was terminated from her position as Executive Director of WAMU, a public radio station owned and operated by American University.  She thereafter sued the University and its then-President Benjamin Ladner, alleging breach of employment contract; tortious interference with contract; breach of the duty of good faith and fair dealing; defamation; and a refusal by the University to pay her for accrued but unused vacation benefits.  While the facts of the case are quite extensive, here were the main allegations made by Clampitt:

     -"Soon after her arrival at the station, Clampitt launched an effort to improve station operations in order to increase the size of the listening audience and to attract new and larger contributions from donors. The budgets that she proposed called for use of the station's cash reserves to finance improvements, a strategy that would require the station to incur operating deficits in the initial years. On September 12, 2000, Ladner specifically approved a spending plan that acknowledged that while 'reserves are not meant to cover budget deficits,' use of reserves to enable the station to invest in fundraising, marketing, programming and salary increases could 'cover [ ] overexpenditures and produce larger revenue streams in the future.' Clampitt testified that '[t]his is something that President Ladner and I did together, and he signed off on everything.'"

     -"On October 20, 2003, the Washington Post published a story about WAMU, stating that '[a]fter years of balanced budgets-even financial surplus-the nonprofit [station] has been awash in red ink, with large operating deficits in each of the last three years and an emergency cash fund that has been depleted of millions of dollars.'"

     -Neither Ladner nor the University made any effort to inform the public that the University had specifically approved Clampitt's financial and budgetary recommendations. Instead, Calmpitt was "scapegoated." On October 30, 2003, Ladner met with Clampitt to inform her that he was terminating her employment.

    -Clampitt "was told repeatedly in the weeks and months after her termination that she could not be hired anywhere else. She was radioactive. You Google her name and the first thing that pops up is Clampitt terminated by American University under cloud of financial improprieties and staff mismanagement."

Meanwhile, during his deposition on December 16, 2004, Ladner testified that he reviewed a two-page summary of questions or issues prepared by defense counsel in preparation for a pre-trial deposition. Clampitt then filed a motion to compel production of the two-page document, but the trial court denied the motion, which, inter alia, prompted Clampitt's appeal.

On Clampitt's appeal, the D.C. Court of Appeals noted that, at his deposition, in response to a question about whether he had reviewed any materials to prepare for the deposition, Ladner testified that he had reviewed a "summary of questions or issues of about two pages that counsel prepared to discuss with me."  Only after the completion of Ladner's deposition did Clampitt move to compel production of the document that Ladner described, and the University's counsel represented to the court that when he met with Ladner prior to the deposition, he (counsel) used the worksheet, a copy of which he left with Ladner, to "verify [counsel's] understanding of the facts of the case," facts "which were otherwise third-hand given to me before them." 

Clampitt's counsel had claimed, however, that seeing how Ladner's counsel had framed the issues necessarily would have influenced how Ladner framed his answers.  Nonetheless, the trial court had denied the motion to compel, reasoning that a document that a lawyer "prepared in order to interview his client" is protected by attorney-client privilege (and it seemingly could have found that the summary should have been entitled to work product protection as well).

The D.C. Court of Appeals affirmed that ruling, rejecting Clampitt's argument that she was entitled to production of the summary under 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...." 

The problem for Clampitt was that, in his deposition questioning of Ladner, Clampitt's counsel did not elicit testimony that the two-page list of "questions or issues" refreshed Ladner's recollection; indeed, counsel asked no follow-up questions about the two-page document.  Therefore, according to the court, "Clampitt did not establish the first of the 'three foundational elements [that] must be met before Rule 612 is applicable with respect to documents reviewed by a witness to prepare for a deposition,' i.e., that 'a witness must use a writing to refresh his or her memory.'"

I agree with the court's ruling.  As I indicated before, I think that a party should be entitled to have writings produced when they are used to refresh a witness' recollection, notwithstanding the work product protection/attorney-client privilege, because otherwise the "production portion" of Rule 612 would be rendered meaningless.  That said, without a specific requirement that the document at issue be used to "refresh" the witness' recollection, a party could argue that virtually any document prepared by an attorney in connection with testimony should be produced, rendering most of the work product protection/attorney-client privilege meaningless.

-CM   

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