When Becton, Dickinson and Co. claimed attorney-client privilege for several documents Jeanne Lukasavage, one of its in-house attorneys, acknowledged reviewing to refresh her recollection before she was deposed on three topics as the company’s corporate representative under Federal Rule of Civil Procedure 30(b)(6), the plaintiff in the patent infringement case, Baxter International, filed a motion to compel based on Federal Rule of Evidence 612.
Becton, Dickinson (referred to as “BD”) argued there was no voluntary waiver of attorney-client privilege for the items she reviewed (called “the Lukasavage documents”), because U.S. Magistrate Judge Sidney I. Schenkier ordered BD to provide a corporate representative to testify about the three topics covered in the deposition.
Rule 612 “gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options.” Federal Rule of Evidence 612(a). The options provided by Rule 612(b) include giving the adverse party an opportunity to inspect the document and use it to cross-examine the witness. [Illinois Rule of Evidence 612 is similar, though it doesn’t limit the remedy to situations where a judge decides that “justice requires” handing over documents the witness used for reviving her recollection.]
Using the three-step analysis provided by Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), Schenkier granted the motion. Baxter International v. Becton, Dickinson and Co., No. 17 C 7576 (Nov. 22, 2019).
Here are highlights of Schenkier’s opinion (with light editing and omissions not noted):
Under Rule 612, the use of a privileged document by a deposition witness to refresh her memory can waive the privilege and lead to the disclosure of the document.
When a deposition witness reviews a document to refresh her recollection before testifying, we will order the production of the document if “justice requires” it.
“The 7th U.S. Circuit Court of Appeals has not adopted a specific test governing when a witness’ use of documents to prepare for a deposition warrants disclosure of such documents.” Africano v. Atrium, 2019 Westlaw 1294642 (N.D. Ill. March 21, 2019).
Baxter directs us to two cases — Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) and James Julian Inc. v. Raytheon, 93 F.R.D. 138 (D. Del. 1982) — that courts in our district have followed to decide this issue. For its part, BD relies heavily on the D.C. Circuit’s reasoning in In re Kellogg Brown & Root (“In re KBR”), 796 F.3d 137 (D.C. Cir. 2015).
We will use the framework set forth in Sporck, as it closely follows the language of Rule 612. First, we ask whether the witness used the document to refresh her memory. Second, we ask whether the witness used the document for the purpose of testifying. Third, we ask whether the interests of justice require us to order production of the document. We address each inquiry in turn.
BD argues that Ms. Lukasavage did not “voluntarily” review the Lukasavage documents to refresh her recollection. According to BD, Ms. Lukasavage needed to review these documents so she could provide corporate testimony about certain “privileged” Rule 30(b)(6) topics for which we ordered BD to produce a witness.
Put another way, BD’s position is that we compelled it to produce deposition testimony requiring the review of attorney-client privileged documents and, as such, it should not be found to have waived the privilege as to those documents.
We are not persuaded. The ruling to which BD refers — our July 26, 2019, memorandum opinion and order — did not compel BD to provide deposition testimony about privileged topics or matters. Nor did our July 26 opinion force BD to show Ms. Lukasavage privileged documents to prepare for the Rule 30(b)(6) deposition. That was BD’s counsel’s choice.
It is commonplace for a deposing attorney to ask a witness about the documents she reviewed to prepare or refresh her recollection for the deposition, so BD’s counsel should have realized the risks in allowing Ms. Lukasavage to review privileged documents as part of her deposition preparation and, specifically, to refresh her memory.
BD also does not explain why it was necessary for Ms. Lukasavage to review the Lukasavage documents to be knowledgeable and prepared to testify about the Rule 30(b)(6) topics at issue, or why the factual information she needed in order to testify about these topics was unavailable from non-privileged sources.
BD’s attempt to analogize this situation to In re KBR is misplaced. In that case, the plaintiff noticed a Rule 30(b)(6) topic that addressed an issue the court deemed to be privileged: an internal investigation conducted by a company’s lawyers. Because the noticed topic sought information about the substance of a privileged investigation, the deponent “had no choice but to review” privileged documents related to the investigation to adequately prepare for the Rule 30(b)(6) deposition.
In sum, BD provides us with no reason to conclude that Ms. Lukasavage had to review the Lukasavage documents to testify knowledgeably about nonprivileged matters within the scope of any Rule 30(b)(6) topic.
BD’s counsel voluntarily decided to have Ms. Lukasavage review certain privileged documents to refresh her recollection. Moreover, this situation is nothing like one where a court orders a party to produce discovery that the party maintains is privileged. The first inquiry of our Rule 612 analysis is satisfied.
We next turn to the second inquiry: [W]hether Ms. Lukasavage used the Lukasavage documents for the purpose of testifying.
Because Ms. Lukasavage substantively testified about each Lukasavage document or about subject matter that was likely addressed by the document, we conclude that Ms. Lukasavage’s deposition testimony was affected and informed by her review of the Lukasavage documents.
Furthermore, we find it reasonable to infer that Ms. Lukasavage’s testimony was influenced by the Lukasavage documents. In the context of a Rule 30(b)(6) witness, it is reasonable to infer “that documents selected by the corporation and provided to the witness to educate him or her on a particular topic is intended to (and thus is likely to) have an influence on the witness’ testimony on that topic.” Adidas v. TRB Acquisitions, 324 F.R.D. 389 (D. Or. 2017).
Here, although BD has not shown that it was necessary for its counsel to have Ms. Lukasavage review the Lukasavage documents to prepare for her Rule 30(b)(6) deposition, BD’s counsel’s choice to do so reflects an intent to have the documents influence Ms. Lukasavage’s deposition testimony. And we find it likely that Ms. Lukasavage’s review of the Lukasavage documents, in fact, impacted her subsequent testimony in some way.
Having found the first two inquiries of our Rule 612 analysis satisfied, we now ask whether justice requires BD to produce the Lukasavage documents. In doing so, we must balance, on the one hand, the need to protect the attorney-client privilege and the desire to encourage thorough preparation of corporate deposition witnesses against, on the other hand, the need for the disclosure of documents to allow a witness to be fully examined.
Protecting the attorney-client privilege is of course important, as its purpose is to encourage full disclosure and to facilitate open communication between attorneys and their clients.
So, too, is it important for a corporation to fully prepare the witnesses who will be deposed on its behalf. A corporate party “has a duty to make a good faith, conscientious effort to designate appropriate persons and to prepare them to testify fully and non-evasively about the subjects” identified in a Rule 30(b)(6) notice. Seaga v. Intermatic, 2013 Westlaw 3672964 (N.D. Ill. July 12, 2013). If the party fails to do so, it frustrates its opponent’s ability to obtain the fullest possible knowledge of the issues and facts before trial, and the corporate party will have to designate, prepare and make available additional witnesses for deposition, causing both parties to spend more time and money.
At the same time, “parties have a heightened need to discover documents used to prepare witnesses designated under Rule 30(b)(6),” as “the substance of their testimony may be based on sources beyond personal knowledge.” Adidas, 324 F.R.D. at 397. This need is particularly heightened when a corporation uses privileged documents to prepare its witness; prohibiting the cross-examining party from seeing those documents because of attorney-client privilege would encourage “parties to use privileged documents to prepare witnesses as a means of limiting the preparation of the cross-examiner.” As the court in Adidas explained:
“A corporate designee could testify only as to information and communications that are advantageous. Other information that would contradict the testimony or undermine the corporation’s position and was contained in the documents could be ignored and the opposing party would have no way of knowing how to test or challenge the corporate designee’s testimony.”
We find that justice requires BD to produce the Lukasavage documents. Without access to the Lukasavage documents, Baxter cannot know whether Ms. Lukasavage’s testimony ignored or misinterpreted certain information contained within these documents, and Baxter should have the opportunity to test and challenge her testimony with these documents in hand.
Moreover, as discussed above, we are not convinced that Ms. Lukasavage had to review the Lukasavage documents to adequately prepare for her deposition. Merely asserting that this was necessary without explanation is not enough.
The attorney-client privilege, despite its undisputed importance, can be waived. Here, BD’s counsel failed to carefully guard its client’s attorney-client privilege when it refreshed Ms. Lukasavage’s recollection using the Lukasavage documents, thereby injecting privileged material into the case.
A finding of waiver, i.e., the production of the Lukasavage documents, is appropriate.