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We call them rules, but come on. “No spitting allowed” is a rule. “One to a customer” is a rule. Rules resolve things; they prevent controversy. But if you have come to believe that the Federal Rules of Evidence and the Federal Rules of Civil Procedure are rules, you should ask for a refund on your law school tuition. We call them Federal Rules, but in large measure they can be interpreted in myriad ways. They often provide no clear-cut answers. They contradict one another. These rules do not rule. Rock, paper, scissors. One rule trumps another. Start with the rule that “all relevant evidence is admissible” except, of course, as otherwise provided by some other rule. (Fed. R. Evid. 402.) Rock. Work product, by definition, is relevant to the litigation, but work product — especially core work product which goes to the mental impressions of the attorney, is entitled to “nearly absolute” protection against discovery. (Fed. R. Civ. P. 26(b)(3)); Nutramax Labs Inc. v. Twin Labs Inc., 183 F.R.D. 458 (D. Md. 1998). Paper. But enter Federal Rule of Evidence 612. If you use a document — even a core work product document — to refresh recollection, the “adverse party is entitled to have the writing.” Scissors. But it’s not that simple. Witness preparation is a staple of the litigator’s diet — and using privileged materials in preparation is as common as ham on rye. But for some reason, “although many courts have analyzed this issue, the results have not been consistent.” Id. at 462. And let’s be very clear. We are not criticizing courts for having some trouble with how these inconsistent rules play out. We wrote on this very subject ourselves nearly four years ago, and when we reread our earlier article, we observed that we were wrong. Well, no, maybe we were right. Maybe not. One thing is clear — four years and many cases later, the answers are no easier. WHEN A WITNESS NEEDS HELP When all heck started to break loose in what is now a nasty lawsuit, you sat down and interviewed the dozen key players, gleaned the facts, studied the law and put everything into a three-page summary which concisely organizes the key facts, sets out the legal theories and candidly assesses the strengths and weaknesses of your case, warts and all. We aren’t simply talking about core work product here, we are talking about nuclear reactor core. But now, three years later, as you prepare your central witness Karen Feeding for her deposition, you find that she has gone brain-dead. She doesn’t remember much; what she does remember is inconsistent with the truths you need to tell at trial to win. So you pull out your summary and ask Karen to read it. Epiphany! I remember now, she says, and strides confidently into the deposition, ready to recite the facts. But, alas, opposing counsel has no wish to learn the facts just yet. The first question is “what documents did you review in preparation for your testimony?” Your sphincter pinches as Karen describes the summary that provides a road map into every perceived weakness in your case. You are brought back to awareness by a demand for the production of the document. Have you lost work product protection by showing the document to Karen? Can you turn over a redacted version which contains only the few paragraphs relating to the factual analysis or do you have to turn over the entire document, including the “Oh, my God, I hope the other side never sees this” section? Fair questions, to which we offer the answer given by Snoopy to the eternal question, “What is the meaning of life?” Snoopy, reclined on his doghouse roof, mused “As I search for the answer, I look to the heavens and the majesty of the universe and ask God to give me the answer. And then it comes to me. The answer is: ‘I don’t have the slightest idea.’” Neither do we. The simple fact is that we can find you reported decisions going every which way. Produce it. Aniero v. New York City Sch. Constr. Auth., 2002 WL 257685 (S.D.N.Y. 2002). Redact it. Hiskett v. Wal-Mart Stores Inc., 180 F.R.D. 403 (D. Kan. 1998). Protect it. Butler Manuf. Co. Inc. v. Americold Corp., 148 F.R.D. 275 (D. Kan. 1993). We don’t have the slightest idea what your judge will do on your particular case. Let’s vary the facts a little. Karen comes to you brain-dead. You show her the core memo. It doesn’t help. Karen remains lost in unrefreshed ignorance. You bite the bullet and produce her for deposition, hoping that you will be able to refresh her trial testimony later by having her sit with the actual people and documents and spending more time with the facts. But at least for purposes of producing your work product, you’re safe, since the memo did not refresh her memory, right? Not necessarily. We don’t know if the drafters of Rule 612 meant to be vague — but they were. “If and only if the witness has an actual lightning bolt of refreshed memory from seeing a document, produce it” is not vague. Or “If the witness is so much as shown the title of a document, produce it” is not vague. But the actual rule talks about production “if a witness uses a writing to refresh memory.” What does that mean? Is it the actual refreshment of memory which is the test, or is it the act of attempting to refresh memory? You could argue both ways. On the one hand, the protection of core work product is strong, and should not be lost where it had no actual impact on a witness’s testimony. See Bank Hapoalim v. American Home Assurance Co., 1994 WL 119575 at *7 (S.D.N.Y. 1994). But you could argue with equal force that “actual refreshment is immaterial.” Audiotext Communications Network Inc. v. US Telecom Inc., 164 F.R.D. 250, 254 (D. Kan. 1996). FAILURE TO REFRESH It is easy to understand that you should be entitled to see a document that actually influences testimony so that you can cross-examine on why and how the influence occurred. But if a document does not refresh recollection, the failure to refresh could be equally important — maybe more so. At deposition, Karen says, “I don’t remember who was at the meeting. Yes, I was shown the core work product document, but it absolutely did not refresh my recollection.” At trial, Karen has been brought back to life with thorough re-education: “I remember now who was at the meeting; it was Smith, Jones and me. After my deposition, Smith reminded me it was Jones’ birthday; that jogged me, and I remembered the cake and everything.” All well and good; Karen is subject to mild impeachment from her failure to remember at the deposition, but she has given a plausible reason for having a refreshed recollection. But now suppose opposing counsel had access to your product document that recites “Feeding, Smith and Jones attended the meeting. Smith told Feeding to be sure to wish Jones a happy birthday. Feeding went out and got a cake.” Now the impeachment is demonstrably better. It is incredible that Karen now remembers events she could not recall at her deposition, even though an attempt was made to refresh her recollection with exactly the same facts she now uses to justify her newfound recollection. It shows that a point can be made from any attempt to refresh recollection, whether or not it actually refreshes. But even for courts inclined to make refreshment the test, how do you test that? Do you take the witness’s word? Maybe. Monticello Ins. Co. v. Kendall, 1998 WL 173194 (D. Kan. 1998) (witness testified that he reviewed documents, but record is silent on whether they influenced testimony, so production not required). Maybe not. Nutramax Labs v. Twin Labs, 183 F.R.D 458 (D. Md. 1998). (“If correct [that the deponent has to admit refreshed recollection] a witness could always avoid the reach of the rule by simply denying that the documents refreshed his or her recollection.”) LOST If there is some question about taking the witness’s word, what about relying on the witness to describe accurately what was shown to her? Karen remembers that she was shown things in preparation for her deposition. But, like most witnesses, when asked what she saw, she can’t remember what those things were. Is your opponent stuck with her inability to describe that three-page document? We have never seen this done — and we will object if someone tries to do it to us yet argue its propriety if we decide to do it — but why couldn’t your opponent serve a document request for “all writings used to refresh memory for any deposition”? Objection, you say. Calls for work product. Well, objection overruled; see above. Can’t comply, you say, she doesn’t know what she saw. But the document request is made on your client; you are your client’s agent and you know perfectly well what Karen saw. This issue routinely comes up, if not in the context of a smoking work product document, then with compilations of documents assembled from vast universes of document production. Each side has produced 2 million documents for the other. Each side has carefully selected a notebook of key documents. And it would border on malpractice not to go over the key documents with your witness in preparation. The culling and compilation of the key documents may or may not be work product — courts disagree. But let’s not try to answer that question; today’s is whether we have to turn over work product because we have shown it to a witness during preparation. Assume it is work product. Do you have to give your opponent the compilation? Again, the answer is a “maybe.” We don’t have to offer different courts to show that different answers are possible. In Nutramax Labs v. Twin Labs, 183 F.R.D 458 (D. Md. 1998), a single judge went both ways; the court accepted that the compilation of selected documents out of a large universe is work product; and for certain witnesses — whose testimony was found to be impacted by the compilation — production was ordered; for others — whose testimony was unaffected — production was denied. The score: Clarity: 0, Baby: Split in half. Don’t forget that Rule 612 only applies to writings, not oral communications. It is a thin distinction that your oral communications during deposition preparation retain the privilege, while your disclosure of writings may not. So why show any document to your witness? Why not paraphrase? Your binder of key documents might become subject to production if you use it in preparation, so why do it? The answer is that memory is better refreshed with visual aids. You need to balance fear of waiver against efficiency and good witness preparation. Agoraphobics know you can’t get into an accident outside the home if you never leave your home. If you want to be absolutely sure that you won’t lose work product, don’t share it. But if you want to win your case, if you want to have well-prepared witnesses, you may have to take a chance or two. Just don’t be deluded into thinking the rules are clear. Jerold S. Solovy and Robert L. Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block, www.jenner.com.

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