The Stealthy Rule 612 Risk to Privilege Protection

July 7, 2021

Lawyers preparing their clients and others for deposition or trial testimony frequently show them documents. Courts disagree about whether such lawyers can withhold from the adversary those documents' identity. The majority of courts seems to allow that, based on the understandable assumption that the documents' identity might reflect the lawyers' strategy. But such preparation risks a far more dangerous possibility – waiving any privilege protection for such documents themselves (not just their identity).

In Johnson v. Baltimore Police Dep't, Case No. ELH-19-698, 2021 U.S. Dist. LEXIS 94323 (D. Md. May 18, 2021), the court dealt with both of these issues. In response to defendants' lawyer's deposition questions, the plaintiff's lawyer instructed an unrepresented non-party witness not to disclose the identity of documents the witness reviewed in preparation for his deposition. The court took the minority view, stating that "when plaintiff's counsel showed [the unrepresented witness] documents in advance of his deposition, plaintiff waived any opinion work product protection it might have had over the compilation of the documents." Id. at *12. The court then turned to Fed. R. Evid. 612, which indicates that courts finding it "in the interests of justice" may order the production of documents a witness reviewed: (1) "for the purpose of testifying"; and (2) which refreshed the witness’s recollection. Id. at *4; Fed. R. Evid. 612 Judiciary Comm. Notes to H. Rep. No. 93-650. Noting that the incident at issue had occurred 30 years earlier, the court explained that "[a]fter a review [of] the deposition transcript and the materials shown the deponent, I am convinced that plaintiff's counsel shared the documents with [the witness] to refresh his recollection" – and ordered them produced. Johnson, 2021 U.S. Dist. LEXIS 94323, at *16.

On its face, Rule 612 case applies to any witness – even a deponent or trial witness who reviewed undeniably privileged documents (perhaps even her own) before testifying. If the court finds that the documents refreshed the witness's recollection, the court can order those documents produced if "justice requires." Lawyers preparing witnesses to testify must keep this unexpected and somewhat counter-intuitive waiver principle in mind.

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