## Facts

- A construction contractor sued Raytheon-related defendants and others; the reported ruling addressed only discovery disputes over privilege and waiver.
- During document production, Raytheon produced certain memoranda and documents later asserted to be protected by attorney–client privilege and/or the work-product doctrine.
- Production occurred under a court-approved protective order stating that production and any use or filing of protected documents would not waive attorney–client privilege, work-product protection, confidentiality, or other applicable privileges.
- Raytheon sought an order compelling Julian to return produced documents that were privileged or work product.
- Separately, Julian’s counsel assembled a witness-preparation binder selecting and arranging documents for Julian’s employees to review in preparation for their depositions.
- Raytheon sought production of the binder, arguing it was not protected work product or, alternatively, that any protection was waived because it was used to prepare witnesses for deposition.
- Julian asserted the binder was opinion work product because its selection and arrangement reflected counsel’s mental impressions, and argued Federal Rule of Evidence 612 did not require disclosure of privileged/work-product materials used before depositions.

## Issues

1. Whether the challenged Raytheon memoranda were protected by attorney–client privilege and/or the work-product doctrine, requiring their return after inadvertent production under a non-waiver protective order.
2. Whether a lawyer-selected and organized witness-preparation binder constitutes protected work product.
3. Whether using the binder to refresh witnesses’ recollection for depositions triggers disclosure under Federal Rule of Evidence 612 and waives work-product protection.

## Decision

- The court granted Raytheon’s request to protect and claw back documents that were, in fact, attorney–client communications and/or work product, and ordered their return consistent with the protective order.
- The court found the witness-preparation binder’s selection and arrangement constituted attorney work product.
- The court nonetheless ordered production of the binder, holding that Julian’s use of it to prepare witnesses for deposition waived work-product protection and brought the materials within Rule 612’s disclosure rule.

## Legal Principles

- Attorney–client privilege protects confidential communications made for the purpose of obtaining or providing legal advice.
- The work-product doctrine protects materials prepared in anticipation of litigation, including attorney mental impressions reflected in the selection and organization of documents.
- A protective order may preserve privilege and work-product protection despite mistaken production, allowing return of genuinely protected materials when waiver is not established.
- Under Federal Rule of Evidence 612, when a witness uses writings to refresh memory for the purpose of testifying (including in deposition preparation), the adverse party may be entitled to inspect those writings when required in the interests of justice.
- Using work-product materials to prepare a witness for testimony can waive work-product protection to the extent necessary to permit meaningful examination of whether counsel’s materials influenced the witness’s testimony; application is fact-dependent.

## Conclusion

The court required return of Raytheon’s genuinely privileged or work-product memoranda under a non-waiver protective order, but compelled production of Julian’s counsel-prepared witness binder because its use to refresh witnesses for depositions triggered Rule 612 disclosure and waived work-product protection.


James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982)