Use of Privileged Documents to Refresh Witness’s Recollection Before Deposition Waives the Privilege, Court Rules 1

A lawyer preparing a witness for her deposition should proceed cautiously when using privileged documents to refresh the witness’s memory.  In two separate cases, the Nevada Supreme Court ruled that state evidence rules require production of privileged documents—at trials and depositions—when used to refresh a witness’s recollection, whether before or at the hearing or deposition.

I"m afraid it's bad news....This ruling contrasts the federal evidence rule, which leaves the production question to the trial court’s discretion when a party uses privileged documents to refresh a witness’s memory before the hearing or deposition.  See Las Vegas Sands Corp. v. Eighth Judicial Dist., 319 P.3d 618 (Nev. 2014), available here, and Las Vegas Dev. Assocs., LLC, 325 P.3d 1259 (Nev. 2014), available here.

State and Federal Rules Compared

Federal Rule of Evidence 612 requires production of documents, including privileged documents, that a witness reviews— while testifying—to refresh her recollection.  The rule provides the trial judge with discretion, however, to require production if the witness reviews privileged documents to refresh recollection before testifying.

By contrast, Nevada’s counterpart evidence rule requires production—at a hearing—of privileged documents used to refresh a witness’s recollection, leaving the trial judge no discretion when the review occurs before the hearing. Nev. Rev. Stat. § 50.125.

Privilege Waiver

In Sands, the court faced the issue whether Nevada’s evidence rule required production of privileged documents used to refresh at a hearing—or in court. The court found significant the distinction between the federal and state rule (trial court’s discretion when documents reviewed before testifying), and held that the state rule “requires disclosure of any document used to refresh the witness’s recollection before or while testifying, regardless of privilege.”

The question before the Las Vegas Development court was whether the Sands ruling applies to depositions or just in-court hearings.  Finding that Fed. R. Civ. P. 30(c) and its Nevada counterpart provide that “examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence,” the court held that the production rule applies to “depositions and deposition testimony as well as to in-court hearings.”  The court concluded:

When a witness uses a privileged document to refresh his or her recollection prior to giving testimony at a deposition, an adverse party is entitled to have the writing produced at the deposition.

Limitations

Importantly, the Nevada Supreme Court was quick to note that Federal Rule 612 and Nevada Rule 50.125 were rules of evidence, not rules of discovery.  The rules’ sole purpose is to test the witness’s credibility at the hearing or deposition, not to create a new line of discovery.

And fearful that permitting post-deposition discovery of privileged documents used to refresh the witness’s memory converts the rule “into a discovery tool that has no relation to testing any witness’s credibility,” the court disallowed production of the privileged documents after the hearing or deposition, requiring only that the witness produce the documents at the hearing or deposition.