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.
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.
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: