Use of Personal Notes—Waiver of Privilege?
Generally speaking, when a witness uses a writing to refresh his or her
memory either prior to or during testimony, opposing counsel is entitled to
production of the document.
However, a federal court has recently ruled (in Calandra v. Sodexho, Inc.
(DC-Conn., 4/27/2007)) that, where a plaintiff had reviewed his notes prior
to giving a deposition, the attorney-client privilege wasn’t waived and,
therefore, production of the notes was not compelled.
The court pointed out that there is widespread agreement under Rule 612(1)
of the Federal Rules of Evidence that, when a witness uses a document to
refresh his or her memory while testifying, the writing must be produced.
Furthermore, there is a presumption under Rule 612(2) that, if a document
has been reviewed in preparation for giving testimony, opposing counsel
should be entitled to review it. However, discretion is afforded to the
judge under Rule 612(2) in determining whether disclosure is in the
interest of justice and, if so, to what extent (portions of the writing may
be redacted). These subjective determinations have caused uncertainty and,
accordingly, unpredictability regarding whether a reviewed writing will be
brought into evidence.
Some courts have come to the conclusion that if an otherwise privileged
document has been used to refresh a witness’s recollection, then the
document at issue must be produced for the opposing counsel. Accordingly, in
this context an assertion of the attorney-client privilege is waived. In
contrast, other courts have held that there would have to be some other
reason for a court to conclude that the attorney-client privilege has been
waived, such as disclosure to an additional nonprivileged individual.
The Functional Analysis Test
The court in Calandra created a test in an attempt to balance the competing
interests between disclosure and the protection of an asserted privilege.
Under the functional analysis test, a court is required to determine whether
the privileged document had a sufficient impact on the witness’s testimony.
If so, the court must then balance whether its production is necessary for
fair cross examination. Practitioners have been critical of this test, as
its subjectivity leaves the practical application and predictability of
disclosure highly uncertain.
Critics claim that an artificial distinction is being created between two
situations. That is, Rule 612 isn’t being uniformly applied in the context
of reviewing notes prior to testifying as opposed to during examination. In
light of the foregoing uncertainties, the most prudent and conservative
approach may be to assume that if a witness uses a writing to refresh her or
his recollection—either prior to or during testimony—opposing counsel
will get access to it.
This newsletter is provided by
Somerset for our clients and other interested persons upon request.
Since technical information is presented in generalized fashion, no
final conclusion on these topics should be made without further review.
For additional information on the issues discussed, please contact
Steve Riddle,
Tom
Thieme,
Rex Collins or
Doug
Ayres
of our
Litigation & Valuation Team.
This document is not intended or written to be used, and cannot be used,
for the purpose of avoiding tax penalties that may be imposed on the
taxpayer.
Somerset CPAs,
P.C.
3925 River Crossing Parkway, Third Floor
Indianapolis, Indiana 46240
317.472.2200 • 800.469.7206 • FAX 317.208.1200
www.somersetcpas.com
