EvidenceProf Blog

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

Monday, October 18, 2021

Southern District of Ohio Finds Work Product Privilege Waived for Documents Used to Refresh Witness's Recollection

Federal Rule of Evidence 612 provides that

(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.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

So, if a witness uses documents for a testimonial purpose, can the party who refreshed her recollection through those documents assert the work product privilege? That was the question addressed by the United States District Court for the Southern District of Ohio in its recent opinion in J&R Passmore, LLC, et al. v. Rice Drilling D, LLC, et al., 2021 WL 4810150 (S.D. Ohio 2021).

In J&R Passmore, the plaintiffs filed a class action requesting the court to certify a class action to recover for the plaintiffs and the putative class damages for the unlawful trespass, conversion and unjust enrichment by defendants. Subsequently,

during the deposition of J&R Passmore's corporate representative, Sherrie Passmore, she disclosed that she had used meeting minutes and emails to prepare for her deposition that had not been produced in discovery. Defendants requested the materials, and Plaintiffs produced the documents but with redactions, claiming attorney-client privilege. Defendants now urge that Plaintiffs should be required under Federal Rule of Evidence 612 to produce unredacted versions.

Second, during depositions of Defendants’ witnesses, Plaintiffs used unproduced documents from the files of Craig Wilson, Plaintiffs’ counsel. Defendants therefore issued a subpoena to Mr. Wilson, commanding production of non-privileged documents and communications.

According to the court,

Despite the force of Rule 612, Plaintiffs contend the work-product doctrine protects the redacted portions of the meeting minutes and emails they produced....Yet, if a witness uses documents for a testimonial purpose-as Ms. Passmore did here-any claim of work-product protection over those documents is waived....At base, the work-product doctrine has been waived, and Defendants are entitled to full disclosure of the relevant documents on which Ms. Passmore relied.



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The judge's ruling makes a lot of sense. I especially agree that in the end, it's not a 612 issue, but just a plain waiver of the WP protection. It seems very straightforward.

I am actually more interested in what became of the second issue with the unproduced document from plaintiffs' counsel's files.

Posted by: kotodama | Oct 19, 2021 7:31:09 AM

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