Most courts apply what is called the Sporck doctrine, protecting as opinion work product a lawyer’s selection of certain documents (equally available to the adversary) to use when preparing a witness for testimony. However, it can be difficult to reconcile this protection with Federal Rule of Evidence 612, which allows courts to order the production of documents which refreshed a witness’s recollection before testifying — if production is in the “interests of justice.”
In Reed v. Advocate Health Care, No. 06 C 3337, 2008 U.S. Dist. LEXIS 3561 (N.D. Ill. Jan. 17, 2008), the court acknowledged the Sporck doctrine, but then ordered the production of documents a lawyer used to refresh deposition witnesses’ recollections. One week later, another federal court reached the identical conclusion. In In re Seroquel Products Liability Litigation, Case No. 6:06-md-1769-Orl-22DAB, 2008 U.S. Dist. LEXIS 5218 (M.D. Fla. Jan. 24, 2008), a Kaye Scholer lawyer filed a declaration explaining how he had reviewed nearly 16,000 previously produced documents before selecting only 42 documents to review with an AstraZeneca witness before her deposition. The lawyer undoubtedly believed that this would bolster the Sporck argument, but his declaration had just the opposite effect. Ordering production of the documents under Rule 612, the court noted that “when the only documents reviewed by a 20-year employee over the course of six days of preparation are 42 documents out of 15,835 exclusively selected by counsel, such preparation suggests the substitution of the lawyer’s judgment for the witness’s recollections.” Id. at *15 (emphases in original; footnote omitted). This triggered production under the “interests of justice” standard.
Lawyers preparing corporate employees for testimony must remember both the protection afforded by the Sporck doctrine and the risk of Rule 612’s application.