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May 17, 2012

Depositions and F.R.E. 612: Why you tell the client rep not to bring her notes to her deposition.

"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 formally 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.


Must be a tawdry document she asked for. Can't wait to see it.

Posted by JD Hull at May 17, 2012 12:59 AM


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