EvidenceProf Blog

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

Thursday, January 30, 2014

Refresher: 2nd Circuit Finds No Need to Disclose Documents Used in Preparation of Testimony

Federal Rule of Evidence 612(a) & (b) state as follows:

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:  

(1) while testifying; or  

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

As Rule of Evidence 612(a)(2) makes clear, if a witness uses a writing to refresh his memory before testifying, the judge has discretion over whether to allow the adverse party to have the writing produced. So, how did the court exercise that discretion in United States v. LaVilla, 2014 WL 305634 (2nd Cir. 2014).

In LaVilla, Matthew LaVilla and others were indicted for conspiracy to commit mail fraud, mail fraud, and conspiracy to launder monetary instruments. At a hearing held pursuant to United States v. Monsanto, 924 F.2d 1186 (2nd Cir. 1991), i.e., a Monsanto hearing, IRS Special Agent Erin Stacer rendered testimony. During her testimony, Agent Stacer noted "that before the hearing she reviewed her notes and memoranda of witness interviews, her grand jury testimony, and spreadsheets she prepared based on bank and Xerox records." Thereafter, the defendants moved for production of those documents, but the magistrate denied that motion.

The defendants thus appealed, contending "that the magistrate judge erred by denying their request during the hearing for the production of those documents, contending that the magistrate judge should have applied Rule 612 of the Federal Rules of Evidence, which governs the production of writings used to refresh a witness's memory." 

The Second Circuit disagreed, concluding

that the district court did not abuse its discretion in rejecting defendants' request for the production of documents that Agent Stacer reviewed before testifying. When a witness reviews a document to refresh her memory before testifying—as Agent Stacer did here—a district court has discretion to order the production of that document “if the court decides that justice requires” production. See Fed.R.Evid. 612(a)(2), (b). We have previously identified Congress's concern regarding the unwarranted and premature disclosure of evidence in criminal pretrial proceedings. See Monsanto, 924 F.2d at 1197–98. Here, defendants failed to establish that justice required the disclosure of Agent Stacer's notes and other materials where the Agent was present at the Monsanto hearing for cross examination by defense counsel and her affidavits had previously been produced to the defendants. Thus, the magistrate judge's decision not to order the production of the documents sought by the defendants was reasonable.



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