FRCP 30(b)(6) Witnesses and Documents Reviewed in Preparation
FRCP 30(b)(6) requires organizations, to provide a witness to offer testimony on topics designated by the deposing party. The witness provided is typically an employee or agent of the organization. The attorney preparing the FRCP 30(b)(6) witness has an attorney client relationship with the organization, and the witness.
Often, an issue arises as to whether the deposing attorney is entitled to review the specific documents used to prepare the FRCP 30(b)(6) witness. There is good law to refuse to provide this information based on the attorney client privilege and work product doctrine. Here it is:
"In Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985), the defendant’s attorney selected a large group of documents and reviewed them with the defendant in preparation for the defendant’s deposition. At the defendant’s deposition, plaintiff’s counsel asked for all the documents the defendant reviewed in preparation for the deposition. Defendant’s counsel refused, citing Federal Rule of Civil Procedure 26(b)(3) and Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 305, 91 L.E.d 451 (1947). The District Court disagreed and ordered production of the documents pursuant to Fed. R. Evid. 612 (document used to refresh a witness’s memory must be shown to opposing counsel). On mandamus, the Third Circuit disagreed.
The Third Circuit concluded that while the documents themselves did not constitute work product, the defendant’s counsel’s selection of these documents (and their organization) was work product. More importantly, the Third Circuit concluded that the selection of the documents was “opinion” work product and thus afforded almost absolute protection from discovery.
The Fourth Circuit adopted the Sporck Court’s reasoning in In re Allen, 106 F.3d 582 (4th Cir. 1997). In Allen, the Attorney General of West Virginia hired outside counsel, who assisted in preparing a witness for a deposition. Outside counsel selected a group of personnel records for a deponent to review in preparation for his deposition. Opposing counsel sought discovery of the records the deponent used for preparation. When counsel refused, the district court held him in contempt. The Fourth Circuit reversed, concluding that while the documents themselves were not work product, outside counsel’s selection of documents constituted legal opinions about which documents were relevant to the case. As such, the Fourth Circuit held that the documents were subject to almost absolute immunity as opinion work product. See also Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999) (holding that work product doctrine precluded discovery of research memorandum prepared in connection with collection of a construction loan). "
There is also contrary law but it is scattered in District Courts and does not address the work product doctrine as well as Sporck and Allen
Often, an issue arises as to whether the deposing attorney is entitled to review the specific documents used to prepare the FRCP 30(b)(6) witness. There is good law to refuse to provide this information based on the attorney client privilege and work product doctrine. Here it is:
"In Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985), the defendant’s attorney selected a large group of documents and reviewed them with the defendant in preparation for the defendant’s deposition. At the defendant’s deposition, plaintiff’s counsel asked for all the documents the defendant reviewed in preparation for the deposition. Defendant’s counsel refused, citing Federal Rule of Civil Procedure 26(b)(3) and Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 305, 91 L.E.d 451 (1947). The District Court disagreed and ordered production of the documents pursuant to Fed. R. Evid. 612 (document used to refresh a witness’s memory must be shown to opposing counsel). On mandamus, the Third Circuit disagreed.
The Third Circuit concluded that while the documents themselves did not constitute work product, the defendant’s counsel’s selection of these documents (and their organization) was work product. More importantly, the Third Circuit concluded that the selection of the documents was “opinion” work product and thus afforded almost absolute protection from discovery.
The Fourth Circuit adopted the Sporck Court’s reasoning in In re Allen, 106 F.3d 582 (4th Cir. 1997). In Allen, the Attorney General of West Virginia hired outside counsel, who assisted in preparing a witness for a deposition. Outside counsel selected a group of personnel records for a deponent to review in preparation for his deposition. Opposing counsel sought discovery of the records the deponent used for preparation. When counsel refused, the district court held him in contempt. The Fourth Circuit reversed, concluding that while the documents themselves were not work product, outside counsel’s selection of documents constituted legal opinions about which documents were relevant to the case. As such, the Fourth Circuit held that the documents were subject to almost absolute immunity as opinion work product. See also Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999) (holding that work product doctrine precluded discovery of research memorandum prepared in connection with collection of a construction loan). "
There is also contrary law but it is scattered in District Courts and does not address the work product doctrine as well as Sporck and Allen
posted by Bob Redmond at 8:06 AM
0 Comments:
Post a Comment
<< Home