Risky and uncertain privilege and work-product concerns arise when a company designates an in-house attorney to serve as a FRCP 30(b)(6) deposition witness. A decision from the ND ILL illustrates the perils.
The court ruled that a company must produce privileged materials that its in-house counsel reviewed while preparing for her depositionâsimply because she used them to refresh her recollection and for the purpose of testifying. Baxter Intâl, Inc. v. Becton, Dickinson & Co., 2019 WL 6258490 (N.D. Ill. Nov. 22, 2019). You may read the decision here.
Deposition Preparation
Becton Dickinson (BD) designated one of its in-house lawyers as its corporate witness for certain topics that Baxter Intâl identified in a FRCP 30(b)(6) deposition notice. To prepare for the deposition, she met with BDâs outside counsel and reviewed documents that included an internal patent-advice memo and a legal-advice memo from outside counsel.
In other words, she reviewed privileged materials that BD hadâproperlyânot disclosed.
Deposition Testimony
At her deposition, the in-house attorney testified that she reviewed the privileged documents to ârefresh her recollection.â While the deposition transcript is under seal, I suspect that the questioning lawyer used that phrase for a reason. But no matter, BD did not dispute that the lawyerâs review refreshed her memory.
But why would a private review of privileged information waive the privilege?
Rule 612
FRE 612 provides a party potential remedies if an adverse witness âuses a writing to refresh memoryâ either while testifying or before testifying. The judge may require the party to produce the reviewed âwritingâ to the adverse party if âjustice requires.â Â For further analysis, see my post Work-Product or Memory Refresher? Court Requires Disclosure of Witnessâs Pre-Depo Doc Review.
This rule reads as if it applies to trial testimony, but FRCP 30 makes it applicable to depositions as well. The question becomes how courts apply the rule to privileged documents reviewed during deposition preparation.
Sporck Standard
A leading case is Sporck v. Peil, 759 F.2d 312 (CA3), available to review here. The Third Circuit held that, under FRE 612, a party must âmeet three conditions before it may obtain documents used by a witness prior to testifying.â
- The witness must use the writing to refresh his or her memory;
- The witness must use the writing for the purpose of testifying; and
- The court must determine that production is necessary in the interests of justice.
KBR Standard
In re Kellogg Brown & Root, Inc., 796 F.3d 137 (D.C. Cir. 2015), the D.C. Circuit rejected a partyâs attempt to obtain privileged internal-investigation materials reviewed by an in-house attorney prior to a deposition. The court, without substantively citing Sporck, held that a party cannot simply notice a privileged topicâhere an internal investigationâwhich forces one to review privileged material and obtain the privileged material under a FRE 612 analysis.
For more analysis of this decision, see my post No 612 Waiver: Privilege Protects In-House Attorneyâs Depo-Prep Review of Internal-Investigation Documents.
Ruling
The Baxter court distinguished the KBR case and followed the Sporck three-part standard to the BD in-house lawyerâs deposition preparation. For the first element, the in-house lawyer testified that she reviewed the privileged documents specifically to refresh her memory. And because she âsubstantively testifiedâ about the privileged documents, the court found that Baxter met the second element.
One note on the second element. The Sporck case identified these elements under a prior version of FRE 612 that, unlike todayâs version, applied where a witness âuses a writing to refresh his memory for the purpose of testifying.â Baxter found this change-in-language of no consequence because the advisory comments state that the amendments removing the phrase âfor the purpose of testifyingâ were âstylistic only.â
Analyzing the third element, the court recognized that the privilege is âimportant,â as is a corporationâs need to fully prepare a company witness. But an adverse party has a âheightened needâ to review documents used to prepare a witness. And the need is âparticularly heightenedâ when the witness prepares by reviewing privileged materials. So, justice required the privileged materialsâ production.
Also Waiver
Notably, the court found that it was not necessary for the in-house lawyer to review privileged memoranda to prepare for her deposition. Instead, the court stated that âBDâs counsel failed to carefully guard its clients attorneyâclient privilege when it refreshedâ the in-house lawyerâs recollection using privileged documents. This, the court said, amounted to privilege waiver.
POP Analysis
In my post, The Privilege When Your Attorney is the Best (or Only) 30(b)(6) Witness, I discussed privilege issues that may arise if a company designates an in-house attorney as its corporate representative to answer deposition topics. But if an in-house lawyer is the most appropriate person to provide corporate testimony, Baxter instructs outside counsel to carefully select the documents for review during depo prep.