There’s a big downside to letting your witness review a document while testifying: The opposing attorney may be entitled to receive copies of documents used to refresh recollection even if they’re otherwise privileged. Evid C §771.
For example, in Kerns Constr. Co. v Superior Court (1968) 266 CA2d 405, 410, the defendant’s employee prepared reports for the defendant’s attorney (covered by the attorney-client privilege/work product rule) but then used those reports to refresh his recollection at deposition. The court held that the reports were discoverable; both the attorney-client privilege and the work product rule were waived.
An attorney in this situation faces a hard choice between:
- Having the witness testify without reviewing documents; and
- Providing key documents for the witness to review, knowing that opposing counsel may learn which documents he or she considers critical.
Even worse, if the witness can’t recall which of the documents had actually refreshed his or her recollection, then the court might order that all documents that the witness reviewed be produced. International Ins. Co. v Montrose Chem. Corp. (1991) 231 CA3d 1367, 1372.
So, what should you do if your witness asks for a document to refresh his or her recollection at deposition? Go through the following points with your witness to be sure it’s really necessary:
- Your best recollection is enough. Stress that his or her best recollection is all that’s required.
- The other side will get the document. Point out that, if the witness’s answer is based on a document or other item used to refresh recollection, opposing counsel is entitled to inspect and copy it.
- Try going on your own first. Suggest that the witness try to prepare without reviewing evidence.
- Don’t give away info on documents. Stress to the witness not to volunteer information about documents or other items if it’s not clear that they’re being mentioned or called for by examining counsel.
For more on refreshing recollection, turn to CEB’s Effective Introduction of Evidence in California, chap 44. And get the complete Checklist of Instructions for Preparing Client for Deposition, along with practical step-by-step guidance on all aspect of depositions, in CEB’s Handling Depositions Action Guide.
Other CEBblog™ articles you may find useful:
- Refreshing Recollection in Court
- Getting Your Client Ready for Deposition
- 4 Tips for Handling Exhibits at Deposition
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