Under Federal Rule of Evidence 612, a federal court may order witnesses to produce even privileged documents they reviewed before testifying — if the documents refreshed their recollection, and disclosure is in the “interests of justice.” Some lawyers forget that this rule might force them to reveal clearly privileged documents that they reviewed with their own client before the client testified.
In In re Managed Care Litigation, 415 F. Supp. 2d 1378 (S.D. Fla. 2006), third party witness American Medical Association designated one of its lawyers as a Rule 30(b)(6) witness. The AMA’s witness obviously reviewed privileged documents. The court noted that some older cases found that such a review resulted in “an automatic waiver of the privilege,” but agreed “with the more recent decisions holding that automatic waiver is inconsistent with both the plain language of Rule 612 and with the advisory committee notes.” Id. at 1381. The court found that disclosure of the privileged documents the AMA witness had reviewed before testifying was not required in “the interests of justice.” Id.
Although the AMA dodged the bullet in this case, litigants should remember the risk of reviewing protected documents with their witnesses.