« Paul Fussell’s “Class” | Main | Anton Chekov: Storytelling in 16 words. »

February 07, 2019

Sensitive Litigation Moment: Depositions and FRE 612.

FRE 612 provides that if a witness uses a writing "to refresh memory", either while or before testifying, the adverse party is "entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness" on the document. Good trial lawyers overlook that FRE 612 applies to depositions as well as to trials. Federal decisions have applied the rule to depositions based upon Fed.R.Civ.P. 30(c). So ask a deponent if he or she looked at documents before the deposition other than those being produced at the deposition. If the answer is "yes", request that they be produced. Go to the judge. You can have them produced during or after the deposition. Often the best documents are the ones that never make it to the deposition, like handwritten records that even opposing counsel doesn't know about.

Posted by JD Hull at February 7, 2019 01:10 AM

Comments

Post a comment




Remember Me?