Lawyers gather, compile, and show documents to their clients to prepare them to testify in a deposition or at trial, often seeking to identify specific documents believed important to opposing counsel. In the 30(b)(6) context, a corporate designee often has no personal knowledge of facts about which he must testify. Counsel may actually have an affirmative duty to educate the witness about facts only the attorney knows.

Impeachment or testing of the deponent's knowledge (or alleged lack of knowledge) and credibility are near impossible without access to the source of the knowledge, i.e., the documents reviewed. Thus, "What documents did you review to prepare for your deposition?" is among the most common deposition questions.

The answer may be permissible or privileged and turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory under Federal Rule of Evidence 612. Asking the right questions can increase the likelihood of disclosure.

The panel will address these key issues:

• What is the difference between having recollection refreshed and having documents "affect and inform testimony"?
• Are compilations created by AI "work product"?
• Is the premise that opposing counsel can reverse-engineer strategy by seeing complied documents really valid?
• What questioning techniques may assist with discovery of compiled or reviewed documents?

Panelists:

• Sarah B. Biser, Fox Rothschild
• Craig R. Tractenberg, Fox Rothschild

CLE credit available. Please note there is a cost.