Rule 612 Revisited
| Publication year | 1982 |
| Pages | 1553 |
| Citation | Vol. 11 No. 6 Pg. 1553 |
1982, June, Pg. 1553. Rule 612 Revisited
In the June, 1980 issue of The Colorado Lawyer, a note of caution was expressed in "The Civil Litigator" with respect to the attorney-client and work product privileges in light of recent applications of Federal Rule of Evidence 612.(fn1) Under Rule 612(1), opposing counsel is entitled to see documents used by a witness while testifying to refresh his or her recollection. Rule 612(2) allows, in the discretion of the court, the discovery of documents used before testimony to refresh the witness' recollection.
Several courts have held, or indicated for future decisions, that counsel's use of otherwise privileged work product materials in the pre-trial preparation of testimony is discoverable under Rule 612(2). It was suggested in the June, 1980 column that perhaps a trend was developing.
In Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc.,(fn2) the court held that documents regarding communications with legal counsel in the client's file, although privileged by the attorney-client relationship, must be produced to the adverse party when used immediately prior to the witness' deposition to refresh his recollection. The court granted to the adverse party limited access to those writings which could fairly be said to have had an impact upon the testimony of the witness.(fn3) In Prucha v. M&N Modern Hydraulic Press Co.,(fn4) the court required that written statements to the attorney by the plaintiff be produced to opposing counsel where the statements were reviewed by the plaintiff prior to his deposition to refresh his recollection.
The court in Berkey Photo, Inc. v. Eastman Kodak Co.(fn5) showed an inclination to allow partial disclosure of privileged documents used in pre-trial preparation. Given the particular circumstances of Berkey, the court refused to order disclosure of counsel's trial notebook, which constituted his work product but which was given to an expert witness before trial. However, the court admonished that it would strongly consider
Notwithstanding this opening of the door to discovery of traditionally privileged documents, the majority of recent cases has limited discovery of documents privileged by work product or the attorney-client relationship to those used at a deposition or at trial. Referring to Rule 612, the court in Marshall v. United States Postal Service(fn7) held that an affidavit prepared by counsel must be produced when used to refresh the recollection of witnesses at their deposition.(fn8) The affidavit had never been signed by the two witnesses nor had it been produced into evidence.(fn9)
In Marshall the court cited Bailey v. Meister Brau, Inc.,(fn10) a 1972 decision wherein the federal district court held that documents prepared by a client or attorney in pre-trial preparation and used to refresh the recollection of the client at his deposition must be produced to opposing counsel even though protected by the attorney-client and work product privileges. The documents involved in Bailey were a summary of discussions of counsel, the client and a financial expert regarding the client's company's sales volume, which was prepared by counsel, and a document regarding projections of the company's future earnings which was prepared by the client to assist the attorney in ascertaining damages.
Consistent with the holding in Bailey, in 1975, the Supreme Court in United States v. Nobles(fn11) ruled that an investigator's report, which was part of the attorney's work product, was properly ordered to be produced by the district court to opposing counsel to the extent that it related to the investigator's testimony at trial.(fn12)...
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