612 Waiver: In-House Lawyer Must Produce Privileged Memo Reviewed Prior to Deposition

Risky and uncertain privilege and work-product concerns arise when a company designates an in-house attorney to 612 waiver privilege refresh memoryserve 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 deposition—simply because she used them to refresh her recollection and for the purpose of testifying. Baxter Int’l, 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 Int’l identified in a FRCP 30(b)(6) deposition notice. To prepare for the deposition, she met with BD’s 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 had—properly—not disclosed.

Deposition Testimony

At her deposition, the in-house attorney testified that she reviewed the privileged documents to “refresh her recollection.” 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 lawyer’s 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 “uses a writing to refresh memory” either while testifying or before testifying. The judge may require the party to produce the reviewed “writing” to the adverse party if “justice requires.”  For further analysis, see my post Work-Product or Memory Refresher? Court Requires Disclosure of Witness’s 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 “meet three conditions before it may obtain documents used by a witness prior to testifying.”

  1. The witness must use the writing to refresh his or her memory;
  2. The witness must use the writing for the purpose of testifying; and
  3. 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 party’s 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 topic—here an internal investigation—which 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 Attorney’s 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 lawyer’s 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 “substantively testified” 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 today’s version, applied where a witness “uses a writing to refresh his memory for the purpose of testifying.” Baxter found this change-in-language of no consequence because the advisory comments state that the amendments removing the phrase “for the purpose of testifying” were “stylistic only.”

Analyzing the third element, the court recognized that the privilege is “important,” as is a corporation’s need to fully prepare a company witness. But an adverse party has a “heightened need” to review documents used to prepare a witness. And the need is “particularly heightened” when the witness prepares by reviewing privileged materials. So, justice required the privileged materials’ 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 “BD’s counsel failed to carefully guard its clients attorney–client privilege when it refreshed” the in-house lawyer’s 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.

Tell us what you think