To those who practice in the criminal law trenches, the ability to refresh recollection is a time-of-trial tool for both the sincerely forgetful and the convenient amnesiac witness – the lawyer shows the witness a document or photo and (leading or non-leading) pushes the witness to remember.  The mnemonic – which is never to be shown or read aloud to the jury as it is not proof but instead serves as a tool – is then put away and trial proceeds.

Lawyers in the civil arena know and do more.  For them, Rule 612 offers an opportunity for discovery – and that lesson needs to be learned in criminal law and by all practitioners.

The opportunity is laid out in the Rule:

(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…

(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.

In sum, if you know (or learn) that a witness relied on documents to refresh memory, they are discoverable.  What goes unsaid in the Rule, but what courts have held, is that the need to review documents overrides claims that the items are “work product” or even “privileged” information.  Consider these cases:

it has been recognized that if a deponent or a trial witness uses a document to refresh recollection, even the claim of privilege will not protect against disclosure…The analogy seems apt here. If Mr. Benun used documents to assist him in preparing his Certification, there can be no legitimate objection to their turnover in discovery.

Duracell U.S. Operations, Inc. v. JRS Ventures, Inc., No. 17 C 3166, 2018 U.S. Dist. LEXIS 17920, at *15 (N.D. Ill. Feb. 5, 2018).

It has been recognized that if a witness uses a document to refresh recollection, the existence of a privilege will not protect against the disclosure required under Federal Rule of Evidence 612. See Ehrlich v. Howe, 848 F. Supp. 482, 493 (S.D.N.Y. 1994) (noting that “when confronted with the conflict between the command of Rule 612 to disclose materials used to refresh recollection and the protection provided by the attorney-client privilege . . . the weight of authority holds that the privilege . . . is waived”)…Under Rule 612, when the witness’s resort to the document occurs before testifying, a production order by the court is subject to its “discretion [once it] determines it is necessary in the interest of justice.” Fed. R. Evid. 612(2). And a party is not precluded from asserting a privilege at that point…”In applying Rule 612 [under those circumstances], courts must balance the tension between the disclosure needed for effective cross-examination and the protection against disclosure afforded by any relevant privilege.”

…Before it evaluates the defendant’s potential claim of privilege, the Court must find “a real, rather than speculative, concern that the thought processes of [the defendant’s] counsel in relation to pending or anticipated litigation would be exposed” by producing these materials under Rule 30(b)(6). See Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987). In the meantime, it is sensible to require the defendant and its Rule 30(b)(6) representative(s) to bring with them to the deposition site copies of the “all documents used to prepare for the deposition.”

Beattie v. CenturyTel, Inc., No. 02-10277, 2009 U.S. Dist. LEXIS 113750, at *4-6 (E.D. Mich. Dec. 7, 2009)

As one court has noted, “courts have been grappling with the scope of Rule 612 with varying degrees of clarity.”  Some cases, exemplified by Ehrlich v. Howe, 848 F. Supp. 482 (S.D.N.Y. 1994), take the position that Rule 612 trumps the privilege, such that a document that is reviewed by a witness prior to deposition must always be produced.

As recognized by one Court in the Southern District of New York, “While such a rule has the virtue of simplicity, it appears inconsistent with the advisory committee note indicating that Rule 612 does not bar the assertion of privilege with respect to documents used to refresh a witness’ recollection.”

A better approach is the functional analysis described in Bank Hapoalim, B.M. v. American Home Assurance Co., No. 92 Civ. 3561, 1994 U.S. Dist. LEXIS 4091, 1994 WL 119575 (S.D.N.Y. April 6, 1994). There, the court found that “[b]efore ordering production of privileged documents, courts require that the documents ‘can be said to have had sufficient “impact” on the [witness’] testimony to trigger the application of Rule 612.’ …. If this threshold is met, courts then engage in a balancing test considering such factors as whether production is necessary for fair cross-examination or whether the examining party is simply engaged in a ‘fishing expedition.'”

Abu Dhabi Commer. Bank v. Morgan Stanley & Co., 2011 U.S. Dist. LEXIS 122325, at *9 (S.D.N.Y. Oct. 14, 2011).

The three cases make clear that at least some of the time, seeing what a witness relied upon will be required even in the face of a claim of privilege.  So, what are the take-aways?

  • When prepping a witness for trial or deposition, be careful what documents are used to refresh that witness’ memory (or to prepare a 30(b)(6) deposition witness).
  • When questioning an opposing party’s witness, especially at a deposition, ask the witness whether she/he looked at or was shown any documents to help refresh memory or otherwise prepare for giving testimony. The longer the passage of time between event(s) and testimony, the more likely both that documents were reviewed and that they were impactful on the witness’ memory and intended testimony.

And when defending against such a request?  Remember that not all courts are as responsive to such claims.  For a recent holding declining to order disclosure, see Campbell v. Pa. Sch. Bds. Ass’n, No. 18-892, 2018 U.S. Dist. LEXIS 120257 (E.D. Pa. July 17, 2018) (emphasizing that it is not whether a witness reviewed documents but that the review “informed” the witness’ answers).