§ 21.08 PRIVILEGED MATERIAL; WORK PRODUCT

• Jurisdiction: United States

§ 21.08. PRIVILEGED MATERIAL; WORK PRODUCT

Rule 612 does not address the issue of whether privileged material, including work product is excluded from required production.²⁵ The rule provides only that matters not related to the subject matter of the witness's testimony must be excised prior to production.²⁶ In-court refreshment has not caused a problem because the waiver rule is well-established in this context.²⁷ Pretrial refreshment may also be construed as a waiver.²⁸

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Notes:

^[25] See infra § 38.14 (discussing work product privilege).

^[26] The House Judiciary Committee Report comments: "The Committee intends that nothing in the Rule be construed as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory." H.R. Rep. No. 650, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7086.

^[27] See United States v. Nobles, 422 U.S. 225 (1975) (trial use of work product material constitutes a waiver).

^[28] See Thomas v. Euro RSCG Life, 264 F.R.D. 120, 122 (S.D.N.Y. 2010) ("[P]laintiff waived [attorney-client] privilege when she relied on the notes in connection with her deposition testimony."); ABA Section of Litigation, Emerging Problems Under the Federal Rules of Evidence, Rule 612, at 187 (3d ed. 1998) ("The majority of courts have permitted disclosure — or at least identification — of privileged materials used to refresh memory prior to...