If you have attended a deposition or read a deposition transcript, you have likely seen the deposing attorney ask the deponent the following question: “Did you review any documents in preparation for your deposition?” And, if the witness answers in the affirmative, “Please identify the documents you reviewed.” How should you handle this line of questioning when defending the deposition of a fact witness? Can you assert attorney work-product privilege? Or are the documents you used to prepare your witness discoverable?
Many courts addressing the discoverability of documents selected by counsel for deposition preparation note an apparent conflict between attorney work-product privilege (see, e.g., Federal Rule of Civil Procedure 26(b)(3)) and rules of evidence permitting opposing counsel to discover documents used to refresh a witness’s recollection (see, e.g., Federal Rule of Evidence 612). Some courts hold that documents reviewed by a fact witness in preparation for deposition are not protected by attorney work-product doctrine solely because they were selected by an attorney. See, e.g., Nutramax Labs., Inc. v. Twin Labs., Inc. 183 F.R.D. 458, 467 (D. Md. 1998) (“If otherwise discoverable documents, which do not contain pure expressions of legal theories, mental impressions, conclusions or opinions of counsel, are assembled by counsel, and are put to a testimonial use in the litigation, then an implied waiver of the work product doctrine takes place, and the documents themselves, not their broad subject matter, are discoverable.”) Such courts are typically not persuaded by the argument that an attorney’s strategies and thought processes are revealed by the documents the attorney selects for a witness to review. See, e.g., N. Nat. Gas Co. v. Approximately 9117.53 Acres in Pratt, Kingman & Reno Counties, Kan., (183 F.R.D. 644, 648–50 D. Kan. 2013).
Other courts have reached the opposite conclusion. These courts hold that counsel’s selection of documents to prepare a witness for deposition is protected attorney work product because the selection of documents by an attorney reflects that attorney’s thought processes and legal theories. See, e.g., Sporck v. Peil 759 F2d 312, 316–18 (3d Cir. 1985);Shelton v. Am. Motors Corp. 805 F.2d 1323, 1329 (8th Cir. 1986). However, even where the documents an attorney selects to prepare a witness for deposition are found to be protected work product, a court may still permit the deposing attorney to discover specific documents the witness relied on to refresh his or her recollection as to the deposition testimony.
In Sporck v. Peil, the court analyzed whether the deposing attorney satisfied the factors necessary to require production of a writing used to refresh the witness’s recollection pursuant to Federal Rule of Evidence 612, after finding that work-product privilege applied. After assessing the relevant factors, the Sporck court decided that counsel taking the deposition failed to establish the witness’s reliance on any deposition preparation documents to refresh his recollection. Sporck v. Peil, 759 F2d at 317–18. The court went on to explain that proper application of Rule 612 should never conflict with the attorney work-product doctrine:
Proper application of Rule 612 should never implicate an attorney’s selection, in preparation for a witness’ deposition, of a group of documents that he believes critical to a case. Instead, identification of such documents under Rule 612 should only result from opposing counsel’s own selection of relevant areas of questioning, and from the witness’ subsequent admission that his answers to those specific areas of questioning were informed by documents he had reviewed. In such a case, deposing counsel would discover the documents through his own wit, and not through the wit of his adversary.
Id. at 318–19.
Thus, even with a finding that an attorney’s selection of deposition preparation documents is privileged, opposing counsel still has a means to discover the documents reviewed in preparation for a deposition to the extent the witness relied on them to testify.
Although the law regarding discoverability of documents selected by counsel for deposition preparation is unsettled, there are some practical steps you can take to prepare for the possibility that your preparation materials will not be given work-product protection:
- Before preparing a witness for deposition, research relevant case law for your applicable jurisdiction. If you are in federal court, determine whether the circuit you are in follows Sprock and its progeny. If you are in state court, find out whether your state has case law addressing the relationship between work-product privilege and documents used to refresh a witness’s recollection.
- Consider the size of the document production in your case. If the production is relatively small and the witness is a party, it may make sense to provide the entire document production to the witness before his or her deposition. This will obviate the need to create a selection of documents that could reveal your strategy.
- If you are preparing a party witness, consider reading portions of documents to the witness and discussing the documents’ contents rather than showing the documents to the witness to review. Your discussions of documents with the witness will likely be protected by the attorney-client privilege.
- If there are key documents in the case your witness needs to be familiar with—for example, the contract at issue in a breach of contract case—consider showing your witness those documents. The benefit of familiarizing your witness with key documents prior to deposition might outweigh any downside to producing those preparation materials to opposing counsel if opposing counsel is already aware of the importance of those documents.
- Do not show a witness privileged documents in preparation for a deposition. If a privileged document refreshes the witness’s recollection and the witness offers testimony as a result, a court may decide the applicable privilege has been waived.
- Prepare your witness to answer questions regarding deposition preparation the same way you prepare your witness to answer questions regarding the substance of your case. You know those questions will be asked. There is no reason to allow this line of questioning to take you or your witness by surprise.
- Lastly, if you are the deposing attorney, be sure to ask questions that lay a foundation under Federal Rule of Evidence 612 or the relevant state equivalent. This can be done at the outset of the deposition by asking the witness whether any documents reviewed while preparing for the deposition refreshed his or her recollection. You can also ask this type of question with a focus on specific topics addressed during the deposition, especially when soliciting testimony about events that took place many years ago.
In the face of inconsistent application of work-product privilege to deposition preparation materials, taking some precautionary steps ahead of a deposition will go a long way in preventing subsequent discovery or motion practice.
Keywords: litigation, young lawyer, work-product protection, Federal Rule of Evidence 612
Amy Frenzen is an associate at Drinker Biddle & Reath LLP in San Francisco, California.