Court Analyzes the Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)

February 28, 2018

Under Federal Rule of Evidence 612, courts concluding that “justice requires” it may order disclosure of privileged or work product protected documents that refreshed a witness’s recollection before testifying.  How does that rule apply to Rule 30(b)(6) witnesses, who generally have no recollection — but instead absorb a corporation’s collective knowledge before testifying as the corporation’s representative?

In Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017), the court noted that (1) some courts “appl[y] an ‘automatic’ waiver under FRE 612” requiring Rule 30(b)(6) witnesses to produce every document they reviewed – an approach the court said had “some appeal,” and (2) “many courts exercise discretion by applying a case-by-case balancing test.”  The court ultimately adopted its own standard, “a middle-ground approach between the automatic waiver rule and the balancing test.”  Id. at *20‑21.  Among other things, the court understandably held that in a Rule 30(b)(6) setting an individual witness “is not having his or her own personal knowledge refreshed” – so it is the corporation’s knowledge that is being “refreshed” under FRE 612.  Id. at *21.

Each of Rule 612 and Rule 30(b)(6) is complicated on its own, but their combination creates additional subtle issues.