All litigators recognize this deposition question: What documents did your review to prepare for your deposition? 
Unless the question extends to communications with counsel, the attorney–client privilege may not preclude an answer. But what about the work-product doctrine?
If the witness identifies deposition-preparation documents that counsel prepared, does that identification invade the lawyer’s opinion work product? What role, if any, does FRE 612—the memory-refreshment rule—play in this analysis?
In a recent case, the federal court in New Mexico held that FRE 612 overrides the work-product doctrine and required a deponent to reveal the documents that counsel gave her to review as part of her deposition-preparation process. Am. Auto. Ins. v. First Mercury Ins., 2016 WL 7395219 (D.N.M. Oct. 22, 2016). You may read the decision here.
Rules Collide?
The work-product doctrine, of course, protects from discovery an attorney’s opinions, mental impressions, and thought processes. FRCP 26(c). Federal Rule of Evidence 612, which applies to depositions under FRCP 30(c), permits opposing counsel to receive, inspect, and ask questions about any “writing” that a witness uses to refresh her memory.
Piercing Questions
In AAIC, plaintiff’s counsel asked defendant’s former VP of Umbrella Coverage, Meg Sutton, to identify documents she reviewed in advance of the deposition. Defendant’s counsel objected on “privilege” grounds and instructed Sutton not to answer.
Plaintiff’s counsel continued to question Sutton about her document review, but avoided asking her to identify them, and then concluded with these questions and answers:
Q. Did any of the documents refresh your recollection about the events involving this litigation or the underlying claim?
A. Yes.
Q. … can you tell me in what manner they refreshed your recollection?
A. Yes. I had almost no recollection of specifics until I reviewed the documents.
You may read the complete deposition excerpts here.
In opposing plaintiff’s subsequent motion to compel, the defendant cited a 3d Circuit case and argued that the work-product doctrine protects documents identified by counsel for a deponent’s review. The court, however, noted that district courts in the 10th Circuit have questioned this concept.
The court rejected the work-product doctrine and held that FRE 612 requires a deponent to identify and produce documents she reviewed before testifying. The key to the court’s ruling was its finding that “Sutton testified that she used the documents provided to her to refresh her recollection in anticipation of testifying at her deposition.”
POP Analysis
Three issues to consider.
First, does the work-product doctrine protect a lawyer’s selection of documents for a witness’s pre-deposition review? The AAIC court questioned whether the work-product even applies. Other courts have expressed differing views, most notably Sporck v. Peil, 759 F.2d 312 (CTA3 1985).
Second, even if the work-product doctrine applies, plaintiff’s counsel did a good job of gaining a FRE 612 admission that the documents selected by the lawyer actually refreshed the witness’s memory, thereby invoking FRE 612. Good practice pointer.
Third, for pre-deposition document review, FRE 612 gives the trial court discretion to order production. In a prior post, I discussed how this discretionary rule contrasts with some state evidence rules. The AAIC court did not address this discretionary component, stating instead that FRE 612 “requires” the production of documents reviewed prior to the deposition.