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November 19, 2010
Depositions: Getting Documents with F.R.E. 612.
"Ms. Bloor, before coming in here today, what did you read or skim to get ready?" 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 depositions as well as to trials. Federal decisions have applied the rule to depositions taken 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.
Some of that stuff's got to be low-down and tawdry...can't wait to see it.
Posted by JD Hull at November 19, 2010 11:59 PM
Comments
But will deponents actually give up their handwritten notes?
Posted by: Joe Marchelewski at November 18, 2010 08:34 PM
If you do FRE 612 right, absent a protective order, or an objection based on work product immunity or a privilege, they must. Life in the big city.
Posted by: Hull at November 19, 2010 01:01 PM