Facts
- S & A Painting Co., Inc. sued O.W.B. Corp. and Transamerica Insurance Co. for damages arising from a contract dispute.
- During discovery, defendants deposed Nick S. Frangopoulos, S & A’s president.
- Frangopoulos brought and consulted 24 pages of handwritten notes prepared earlier at counsel’s request describing events relevant to the litigation.
- The deposition transcript reflected that he referred to the notes multiple times to confirm dates and read from them once.
- Defendants moved to compel production of the entire set of notes under Federal Rule of Evidence 612.
- S & A opposed, asserting attorney–client privilege and work-product protection.
Issues
- Whether a witness’s use of a counsel-requested memorandum to refresh recollection during a deposition triggers Federal Rule of Evidence 612.
- If Rule 612 applies, whether that use waives attorney–client privilege and work-product protection for the entire memorandum or only the portions actually used and related to the witness’s testimony.
Decision
- The court found the handwritten notes were protected by attorney–client privilege and the work-product doctrine.
- The court held that the witness’s use of the notes during the deposition triggered Rule 612.
- The court held that any waiver resulting from use was limited to the portions of the notes actually used to refresh recollection and related to the testimony.
- The court ordered limited disclosure rather than production of the entire memorandum.
Legal Principles
- A writing prepared at counsel’s request concerning events relevant to pending litigation may qualify as attorney–client privileged and work product.
- Under Fed. R. Evid. 612, when a witness uses a writing to refresh memory for the purpose of testifying, the adverse party is entitled to production of the writing to inspect it and use it in examination, limited to portions that relate to the witness’s testimony.
- Use of privileged or work-product material to refresh recollection can effect a waiver, but the scope of waiver may be confined to the used portions necessary to test the testimony; unexamined portions remain protected.
Conclusion
The court applied Rule 612 to require production of only the parts of a privileged, counsel-requested memorandum that the deponent actually used to refresh deposition testimony, rejecting a claim that such use mandates disclosure of the entire document.