Commercial Litigation and Arbitration

Mediation Presentation Reviewed by Party to Refresh Recollection for Deposition Ordered Produced — 3-Part Test, and 9 Factors Considered, for Production under Rule 612

From Greenwood Realty, Inc. v. Action Realty, Inc., 2011 U.S. Dist. LEXIS 15586 (D.S.C. Feb. 15, 2011):

This matter is before the court on ‘[Defendants’] Motion to Compel ... [Plaintiffs] to produce an electronic copy of a 90 slide Power Point presentation first presented at the mediation of this case on September 13, 2010, and photocopies of any copy of such presentation provided to any witness and relief plaintiff that has already testified or will testify in a deposition in this case pursuant to Rule 37(a) of the Federal Rules of Civil Procedure. ***

A party may discover any writing, even one subject to privilege, used to refresh a witness's memory for the purpose of testifying, whether his memory is refreshed "while testifying, or before testifying, if the court in its discretion determines it is necessary in the interests of justice." Fed. R. Evid. 612. In determining whether use of documents to prepare for a deposition constitutes a "testimonial" use of the records sufficient to trigger a waiver of the work product doctrine, the court must be satisfied that: (1) a witness used the writing to refresh his or her memory; (2) for the purpose of testifying; and (3) in the interest of justice, the adverse party is entitled to see the writing. See Nutramax Labs., Inc. v. Twin Labs., Inc., 183 F.R.D. 458, 468 (D. Md. 1998).

During the deposition of Jane Callison, Defendants' counsel inquired as to a document that the witness had in her possession during the deposition. The document was a copy of the presentation at issue in this motion. Plaintiffs' counsel objected to any questions regarding the document, claimed work product privilege, and instructed the witness not to answer. Upon further examination, the witness testified that she reviewed the document overnight "and will continue to look at it." Callison Dep. at pp. 14:23 - 15:5.... Based on this deposition testimony, the court finds that the witness used the document to refresh her memory for the purpose of testifying.

The court must now determine whether compelling production is in the interest of justice. Defendants argue that Plaintiffs have failed to respond to numerous interrogatories and document requests concerning the specifics of the allegations of their Complaint. Defendants further represent that the presentation shown to them during the mediation sets forth the specifics of Plaintiffs' claims. Some of the relevant factors that the court may consider in its decision include (1) the status of the witness; (2) the nature of the issue in dispute; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the document(s) reviewed; (7) whether the documents reviewed contain, in whole or in part, "pure" attorney work product; (8) whether the documents reviewed previously have been disclosed; and (9) whether there are credible concerns regarding manipulation, concealment, or destruction of evidence. See Nutramax, 183 F.R.D. at 469-70. In this case, the witness is a plaintiff and the dispute concerns allegations of misrepresentations which must be detailed to Defendants for their defense of the action. The documents were prepared by counsel and, although counsel has claimed work product privilege, the document has already been disclosed to Defendants albeit in mediation. Further, the witness reviewed the document just prior to the deposition and intended to maintain it in her possession throughout the deposition had counsel not removed it. Additionally, it appears that Plaintiffs have not provided full responses to Defendants' discovery requests requesting the details of their claims. Therefore, the court finds that it is in the interest of justice to compel Plaintiffs to produce a copy of the presentation.

Footnote 1 The court need not and does not make any findings regarding the applicability of a mediation privilege.

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