EvidenceProf Blog

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

Monday, October 24, 2011

The Privilege Was Mine: Eastern District Of Virginia Finds Rule 612 Refreshment Didn't Vitiate Privilege

Federal Rule of Evidence 612 states that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, 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. 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. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

So, let's say that a party uses privileged documents to refresh the recollection of a witness prior to a deposition. Does the party now need to produce those documents to the adverse party? If you want to know the answer, the recent opinion of the United States District Court for the Eastern District of Virginia in Brown v. Tethys Bioscience, Inc., 2011 WL 4829340 (E.D.Va. 2011), is probably your best bet.

The facts in Brown were as stated above, with the plaintiffs served a subpoena duces tecum issued by this Court on a former executive for the defendant, ordering him to produce "any and all documents [he] brought to [his] deposition taken in this case on March 24, 2011, in Richmond, Virginia." In response, the defendant moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45, claiming that two documents that the former executive brought to his deposition — the "October 11, 2010 E–Mail" and the "October 12, 2010 Document" — wre protected by the attorney-client privilege and/or the work product doctrine. 

In addressing this issue, the Eastern District of Virginia initially noted that

Courts have developed the following three-part test to determine whether otherwise privileged documents should be produced under Rule 612 based on their use by a deponent to refresh his or her recollection prior to the deposition: "(1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing."

The court then noted that

Factors to consider when making this determination include the following: (1) the witness's status; (2) the importance of the witness's testimony to the case; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (6) what type of privilege applies to the documents; (7) whether the documents were previously disclosed; and, (8) the existence of credible concerns regarding manipulation, concealment, or destruction of evidence.

And, according to the court, there was a an insurmountable problem for the plaintiffs: They merely claimed that the former executive "brought several documents in a folder to the deposition," that he "reviewed the documents in preparation for the deposition," and that he referred to and reviewed the documents "while formulating a response to questions." According to the court: 

Because they fail to specify any conduct regarding the two documents subject to challenge here, these conclusory allegations insufficiently meet the burden under Rule 612Rule 612 provides access "'only to those writings which may fairly be said in part to have an impact upon the testimony of the witness.'"...Plaintiffs have failed to sufficiently demonstrate that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document while testifying or in preparation for testifying. This failure renders Rule 612 inapplicable.

Moreover, the Eastern District of Virginia found that

Even if the Court were to assume that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document in preparation for testifying, the Court, in its discretion, would not require the production of the two documents. Considering the information contained in these two documents, the need to fully examine Funk's testimony, the policies underlying the privileges at issue, and the other factors listed above, the Court concludes that the balance weighs against requiring the production of these two documents.



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