Often, without second thought, you hurriedly show clients documents, notes or reports to refresh their recollection prior to a deposition. Sometimes a variety of case documents are mailed or emailed to the deponent for review. This is done with the expectation that the information is unquestionably protected from production by the attorney work product doctrine.
However, in California this approach is not ironclad because there is no bright line protection rule. Instead, courts are currently performing a balancing act with; (1) the right to protect attorney’s work on behalf of clients that reflect the evaluation or interpretation of the law or the facts; and (2) the right to obtain all documents the deponent reviewed in preparation for the deposition. Consequently, until California precedent is established, the safest bet is to err on the side of not showing deponents documents that you wish to keep from the opposition.
On the one hand, work product protection covers “any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Mack v. Sup.Ct., (1968) 259 Cal.App.2d 9). More importantly, under Civ Proc. Code Section 2018.020(a), writings containing an attorney’s impressions, conclusions, opinions, are absolutely protected from discovery. While on the other hand, Evid. Code Section 771 provides if a witness “either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced… at the request of the adverse party.” Moreover, opposing counsel cannot refuse to produce documents shown to deponent (party or non-party) to refresh his or her recollection in preparation for the deposition. (International Ins. Co. v. Montrose Chemical Corp. of Calif., (1991) 231 Cal.App.3d 1367).
As you can glean, there is no easy way to reconcile the two competing interests. Therefore, whether taking or defending a deposition, it is crucial that you know how to effectively maneuver in this area.
Ask and you shall receive! If you are taking a deposition, you should always ask the deponent; (1) Did you review any documents in preparation for this deposition or more specifically did your attorney show you any documents to refresh your recollection for this deposition; and (2) what documents were they?
The first question is proper and unobjectionable. However, the second question will likely draw an objection and instruction not to answer because it invades attorney work product and possibly attorney client privileges. This argument stems from Code Civ. Proc. Section 2018.30(a) where documents reviewed were selected by deponent’s counsel and necessarily reflect counsel’s opinion as to what is important and should be absolutely protected. Nonetheless, unless counsel withholding documents articulates a sound position as to why particular documents were purposefully and thoughtfully provided, which may imply some reflection of attorney analysis, a motion to compel should be well taken by the court because to hold otherwise would emasculate Evid. Code Section 771.
Show and you may be sorry! You must carefully consider whether to show documents to your client in preparation for their depositions. There are situations where it’s critical that your client has a good working understanding of certain pertinent documents. If that’s not the case, they may come off as detrimentally clueless and evasive. In those situations, it is best to only review documents orally, without physically showing the deponent any documents. That way all discussions will be protected under the attorney client privilege notwithstanding any ruling on the dubious application of the work product doctrine. Until we receive more guidance, not to show is the answer.
Michael J. Libutti is a Broker and Attorney at Class Realty Group’s San Diego office. He can be reached by email at email@example.com or by phone at 858-220-4295.