The plaintiff in Calandra v. Sodexho, Inc., 2007 U.S. Dist. LEXIS 31418 (D. Conn. April 27, 2007), prepared personal notes before hiring a lawyer to file an age discrimination claim. The defendants sought to compel production of the notes. The defendant argued, first, that the notes could not be privileged because they were prepared before counsel was retained and, second, that any privilege had been waived because the plaintiff reviewed the notes to refresh his memory for his deposition. Magistrate Judge Holly B. Fitzsimmons held the notes privileged and found no waiver. After reviewing the notes in camera, she observed that they bore a heading reflecting that they were prepared for the subsequently-retained attorney, and the evidence reflected that the notes were shown only to him and his staff. The Court concluded that, as attorney-client communications whose confidentiality had been maintained, the plaintiff’s personal notes were privileged.

The issue then became whether the privilege had been waived by the plaintiff’s review of the notes in advance of his deposition. The Court stressed that Fed.R.Evid. 612(1) did not apply because the plaintiff did not review his notes while testifying at his deposition. Had he done so, production to the adversary would have been required and a waiver effected. In contrast, Rule 612(2) did apply, but disclosure under that provision is required only ‛if the court in its discretion determines it is necessary in the interest of justice“ (Fed.R.Evid. 612(2)).

The Calandra opinion nicely sets out the trifurcated split among the courts on the question whether review of a writing in advance of a deposition to refresh memory waives any privilege associated with the writing. Some opinions find a more or less automatic waiver, others hold that no waiver occurs unless the privilege has independently been forfeited, and yet others fall somewhere between these extremes. Calandra chose the middle ground known as the ‛functional analysis“ test, which was recently applied in In re Rivastigmine Patent Litig, 2007 U.S. Dist. LEXIS 25543 (S.D.N.Y. April 6, 2007). The functional analysis test ‛require[s] that the documents can be said to have had sufficient ‘impact’ on the witness’ testimony before trigging the application of Rule 612“ (original brackets and certain internal quotations omitted). Following in camera examination of the notes, which the Court found to be less complete than the deposition testimony elicited by the defendants, Magistrate Judge Fitzsimmons concluded that no waiver had been effected.