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November 28, 2008
Depositions: Getting documents with F.R.E. 612.
"So, Mr. Bloor, just before coming in here today, what did you read, or even just skim?" Often the best documents--and certainly often the most interesting ones--are documents that are not produced before or during a deposition, like handwritten records that even opposing counsel doesn't know about. F.R.E. 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. Even great lawyers overlook that F.R.E. 612 applies to
(...oh goodness, I can't believe he actually read those notes this morning...this is getting good...)
depositions as well as to trials. Federal decisions have applied the rule to depositions based upon Fed.R.Civ.P. 30(c). So ask the deponent if he or she looked at documents before the deposition other than those being produced at or in advance of the deposition. If the answer is "yes", request that they be produced. You can have them produced during or after the deposition.
Posted by JD Hull at November 28, 2008 11:59 PM
Comments
JD,
While I agree that this is an area very good lawyers often overlook, I disagree with you on what the correct question is. If I ask "And Mr. Jones, did you review any documents before coming to this deposition?," or even "Did you review any documents to prepare you for this deposition?" -- and both questions are very common -- a yes answer doesn't necessarily get me to Rule 612, because I haven't established that the document "refresh[ed] memory." On the other hand, how about the following series of questions:
"Mr. Jones, what documents having to do with this case did you review before coming to this deposition?
And why did you review those documents?
Did you want to see if there was anything in the documents that might assist you in responding to questions today?
And what about them did you think might assist you?
Was your purpose in reviewing them them the hope that they might help refresh your memory about some of the things I would ask you about today?"
If you get a yes, then it's probably time for the witness to cough up the documents.
Posted by: Bruce Nye at November 29, 2008 01:54 AM
No argument from me, Bruce. You just made our post better and more practical. The questioner certainly needs to ask more than one question; one of them should probe purpose.
Posted by: Dan Hull at November 29, 2008 04:50 PM