Commercial Litigation and Arbitration

Witness’s Review of Privileged Notes of Conversations Before Deposition Waived Privilege — Production Ordered Under Fed.R.Evid. 612(2)

From Thomas v. Euro RSCG Life, 2010 U.S. Dist. LEXIS 14305 (S.D.N.Y. Feb. 18, 2010):

At plaintiff's deposition on January 20, 2010, plaintiff testified that she had looked at notes in preparation for her deposition that recounted the dates and substance of conversations plaintiff had had with former in-house counsel for defendant Euro RSCG Life, Peter Glass. ***

In general terms, the notes are a chronological recounting of conversations that plaintiff recalled having with Mr. Glass, chiefly regarding Mr. Glass's statements about various individually named defendants and their actions regarding plaintiff. According to plaintiff's counsel, plaintiff communicated this information in confidence to her attorney for the purpose seeking legal advice related to the claims of discrimination and retaliation alleged in her Complaint against the defendants.... This is sufficient to clothe the notes with privilege. See generally Von Bulow v. Von Bulow, 811 F.2d 136, 146 (2d Cir. 1987).

[Footnote] 1 Defendants argue that attorney-client privilege does not extend to communications in which the client or the attorney merely conveys information provided by a third party.... Urban Box Office Network, Inc. v. Interfase Managers, LP., No. 01 Civ. 8854 (LTS)(THK), 2006 U.S. Dist. LEXIS 20648, at *8 (S.D.N.Y. Apr. 18, 2006)). But that is only true where the client is, in effect, a cipher, or where the client delivers documents from a third party to the lawyer. Cf. Urban Box Office, 2006 U.S. Dist. LEXIS 20648, at *16-17. Here, where the client's own recollection is very much part of what is being conveyed, the privilege attaches.

But plaintiff waived that privilege when she relied on the notes in connection with her deposition testimony. See, e.g., Robinson v. Time Warner, Inc., 187 F.R.D. 144, 147 (S.D.N.Y. 1999); Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 494 (S.D.N.Y. 1993). Here, plaintiff admitted to reviewing the notes for approximately fifteen minutes immediately prior to her deposition.... She did so, as she testified, "because Peter and I had many conversations, and it's going to be very difficult for me to recount all of the conversations"[.]... Since these conversations were a central part of the deposition, it is clear that the notes likely had an impact on plaintiff's testimony. See Bank Hapoalim, B.M. v. Am. Home Assurance Co., No. 94 Civ. 3561 (KMW), 1994 U.S. Dist. LEXIS 4091, at *16-17, 20-21 (S.D.N.Y. Apr. 6, 1994); see also Suss v. MSX Int'l Eng'g Servs., Inc., 212 F.R.D. 159, 165 (S.D.N.Y. 2002).

Plaintiff's counsel argues, nonetheless, that even if this would amount to waiver if it had occurred at the deposition, the fact that the witness instead reviewed the notes shortly before the deposition began makes a difference. It is true that Fed. R. Evid. 612(2) indicates that if a witness reviews privileged documents prior to the deposition instead of using them to refresh her memory during the deposition itself, disclosure is only required where "the court in its discretion determines it is necessary in the interests of justice." Fed. R. Evid. 612(2).... But just such a finding is compelled here. The notes are simply a factual recitation, arranged chronologically, and evince no work-product concerns. They relate to conversations about which the witness knew she would be questioned: indeed, plaintiff's counsel, in an earlier in-court conference, had repeatedly referenced these conversations as a basis for seeking various discovery in this case.

[Footnote] 2 These representations by plaintiff's counsel might themselves have been sufficient to waive privilege as to the notes here in question.

Finally, since the subject matter of these conversations, and the conversations themselves, are likely to play a substantial role in plaintiff's case, it is in the interests of justice for defendants to be able to adequately cross-examine plaintiff by having access to notes that plaintiff admitted to reviewing so that she could answer questions "accurately."

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