Protecting work product and attorney-client privilege is not always simple when preparing a witness. If the witness reviews a document to prepare testimony, the document may be subject to production, and such production may waive a variety of privileges. A crafty interrogator may well require the production of documents and other things subject to privilege. A defender of a deposition should know how to reduce this risk. This article will use the Federal Rules of Evidence and the Federal Rules of Civil Procedure to illustrate the issues, but state court rules and case law can provide similar results and strategies.

Types of Privileges

The attorney-client privilege protects client information discussed confidentially with counsel for professional legal advice. The client is entitled to waive this absolute privilege against disclosure, and the privilege can be waived inadvertently. An inadvertent waiver could occur, for instance, by sharing the privileged information with someone who is not a client and cannot otherwise protect the privilege. Preparing a deponent with attorney-client privileged material, even if the deponent is a client, may result in a waiver of the privilege if the client is asked and answers about it. Object to any questions involving legal theories of a fact witness.

The work product privilege is a qualified privilege that is partially contained in Federal Rule of Civil Procedure 26(b)(3). This federal rule provides qualified protection to documents and other things prepared in anticipation of litigation, sometimes referred to as “fact work product.” An example of fact work product would be a witness statement taken by an attorney verbatim that does not include an attorney’s thoughts. Court have also recognized an “opinion work product,” which is referred to in Rule 26(b)(3) as nondiscoverable “attorney’s mental impressions, conclusions and legal theories.” An example of opinion work product would be an attorney’s research memorandum containing the attorney’s thoughts, impressions and strategy about the case.

Courts generally hold that fact work product may be required to be produced if there is a substantial need for production of such information and failure to produce the fact work product will result in undue hardship. Opinion work product generally is granted a preferred protection and will not be produced unless the mental impressions of counsel are at issue and the need for such information is compelling. The differences between fact work product and opinion work product are sometime difficult to discern, especially in the area of documents gathered by counsel to educate witnesses. Generally, such document compilations are considered opinion work product because the attorney’s mental impressions and theories are used to compile the documents. The argument for protecting compilations is that the documents selected could be used to reverse engineer the legal defense.

The Rules of Evidence May Defeat the Privileges

Despite the shields these privileges provide to avoid producing documents or compilations, Federal Rule of Evidence 612 requires production of documents be provided to opposing counsel if used to refresh a witness’s memory during testimony. Most courts hold FRE 612 applies not only to hearings but also to depositions. The same rule requires production of documents that the witness reviewed to prepare their testimony if justice requires it. The documents are entitled to be reviewed before the testimony in order to prepare cross examination to determine, among other things, the quality of the memory of the witness, bias in interpretation of the document, and credibility.

Courts have struggled with the tensions between the work product doctrine and FRE 612. When a witness reviews a work product document to prepare for deposition, FRE 612 may require prior production of what otherwise would be a document subject to the work product qualified privilege. Where FRE 612 the interrogating attorney to test the witness’s memory and credibility with respect to the document, the work product qualified privilege may prohibit production to protect the counsel’s preparation and mental impressions that culminate in a legal strategy.

The Greatest Risk to Privileges Is the Preparation of a Corporate Representative

Federal Rule of Civil Procedure 30(b)(6) allows a notice of deposition to force a business entity to answer issues identified with particularity as a single deposition. The entity may designate anyone to testify, or multiple people to testify regarding the topics identified in the deposition notice. The designee, however, must have knowledge of the topic, and must be educated on the topic through employee interviews, former employee interviews, and document reviews. In cases where a designee needs to be educated though documents, the document compilation prepared to educate their testimony may be both work product and documents under FRE 612 that refresh the witness’s recollection and aided in their testimony. Most courts have concluded that such compilations are opinion work product because the selection process of the documents discloses the counsel’s mental impressions and legal opinions about the case. If the compilation had not been protected opinion work product, the preparation of the witness may have been compromised. As opinion work product, most courts will not require production unless the witness used the writing to refresh memory, the writing was used for the purpose of testifying and the court determines that production is necessary in the interest of justice. These courts require laying a foundation as to each of these elements in order to gain access to the documents reviewed, i.e., how were you educated on the topics and what documents did you review in preparation for your deposition?

Some other courts impose an automatic waiver rule which provides that any documents compiled for review and education to help the witness testify automatically waives work product privileges. The policy is that FRE 612 makes the balancing tests unnecessary, and that the litigation strategy can be reverse engineered from the compilation—the compilation was a response to the topics identified in the notice of deposition and not a free hand research memorandum. Other courts impose a more nuanced balancing test which measure how the documents affect and inform the testimony.

Best Practices

First, if the documents have not already been produced, then determine whether the jurisdiction will protect compilations as opinion work product. If opinion work product privilege is important to protect, then you can take certain steps to minimize the risk of disclosure.

Not every document in the case that is important is reviewed in anticipation of testimony. Some witnesses know the “hot documents” in the case before preparing their testimony as such documents do not fall under FRE 612. It is also possible to prepare the witness without a document review, by withholding documents and merely summarizing them in a memorandum that could be read to the witness by counsel. In addition, counsel could prepare a memorandum to the file which contains the legal strategy for the compilation which would limit the risk that a court would require disclosure of the compilation as it could be a window to the legal strategy.

Research the jurisdiction and decide what strategy is best for the witness to protect privilege.

Reprinted with permission from the January 23, 2024 issue of The Legal Intelligencer© 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.