EvidenceProf Blog

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

Saturday, October 17, 2009

In Good Hands?: Court Of Appeals Of Kentucky Opinion Reveals Danger Of Using Privileged Documents To Refresh Recollection

Like its federal counterpartKentucky Rule of Evidence 612 indicates that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

In other words, as the recent opinion of the Court of Appeals of Kentucky in Hager v. Allstate Insurance Company, 2009 WL 3320938 (Ky.App. 2009), makes clear, if you have a document that you want to keep privileged, don't use it to refresh the recollection of a witness.

In Hager

Thomas LaPointe, who was insured by Allstate, rear-ended the Hagers' vehicle. Mr. Hager, Geneva's husband, was driving, and Geneva Hager was a passenger. According to LaPointe's recorded statement of the accident, his brakes failed as he approached the Hagers' truck. In response, he shifted his vehicle from second gear to first gear and turned off the motor. While in second gear, LaPointe estimated that he was going approximately fifteen miles per hour. After gearing down, he thought he was going around five miles per hour when he rear-ended the Hager vehicle. LaPointe described the impact like unexpectedly hitting a speed bump.

Geneva's insurance claim was thereafter handled by Allstate's Minor Impact Soft Tissue (“MIST”) unit, and she later brought an action against Allstate, claiming that it handled her claim in bad faith. After trial, the jury returned a verdict in favor of Allstate, prompting Hager's appeal.

One of the grounds for Hager's appeal was that the trial court erred in entering an order requiring her to disclose privileged communications between her counsel and an expert witness, the Honorable James E. Keller, including an engagement letter. This letter 

was a five-page letter of the factual background of the matter authored by Hager's counsel. The letter became an issue at Justice Keller's deposition when he stated that he believed he asked for a letter from Hager's counsel setting forth the facts relating to the case. When asked in more detail regarding the letter by Allstate's counsel, Justice Keller asked for a recess during his deposition to review the letter to refresh his recollection. Thereafter, he did so.

According to the Court of Appeals of Kentucky, because Hager's counsel used the letter to refresh Justice Keller's recollection under Kentucky Rule of Evidence 612Allstate was entitled to have the writing produced. Moreover, the appellate court found that the trial court followed the proper procedure under Kentucky Rule of Evidence 612 because it 

ordered the letter to be produced in camera and under seal. After reviewing it, the court ordered Hager to produce it, ruling that Allstate was entitled to the communications and documents provided to Justice Keller from Hager's counsel “upon which the expert relied in formulating his opinions, and any revisions thereto...."



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