UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION
JAMES STUDENSKY, RESPONDENT; § § Plaintiff, § § v. § CIVIL NO. W-20-CV-01065-DTG § BLUE CROSS AND BLUE SHIELD OF § TEXAS, MOVANT; § § Defendant. §
ORDER DENYING DISCOVERY REQUEST Before the Court is Plaintiff’s discovery dispute chart (attached to this Order as Exhibit A) that was submitted to the Court on August 12, 2024. The Court heard oral argument on the dispute as part of its August 13, 2024, motions hearing, and ordered Defendant to produce the document at issue (corporate representative Lynn O’Dea’s notes) to the Court for an in camera review. The dispute involves notes taken by Defendant’s corporate representative witness. Before the deposition, and in preparation for her role to testify as a corporate witness, Ms. O’Dea took 5 pages of handwritten notes during conversations with her attorney and another employee of De- fendant. Ms. O’Dea testified that she reviewed the notes in preparation for her testimony, but she never relied on or reviewed the notes to refresh her recollection during the deposition. Following the deposition, Defendant produced a redacted version of the notes. Plaintiff Because the depo- nent reviewed the notes before her deposition, Fed. R. Evid. 612(a)(2) governs, and only requires them to be turned over “if the court decides that justice requires.” Having reviewed the notes and the accompanying deposition transcript, the Court has de- termined that the contents of the document are largely unrelated to her testimony and privileged. As such, the Court determines that justice does not require Defendant to disclose the entirety of the notes to Plaintiff. Plaintiff's request to produce the entirety of Ms. Lynn O’Dea’s notes and for a Zoom deposition concerning the content of those notes is hereby DENIED. SIGNED this 14th day of August, 2024.
A . he he UNITED STATES MAGISTRATE JUDGE
Exhibit A- Discovery Dispute Chart Issue Requesting Party’s Position Responding Party’s Position Trustee seeks Rule 612 states that “if a witness uses a writ- The Trustee seeks production of notes production of ing to refresh memory for the purpose of testi- O’Dea took during meetings involving notes made by fying . . . before testifying, if the court in its counsel and BCBSTX employees in prepa- a corporate discretion determines it is necessary in the in- ration to be a 30(b)(6) witness. The law is representative terests of justice, an adverse party is entitled clear that, at most, the Trustee is entitled during her to have the writing produced at the hearing, to only to portions of the notes relating to meeting with inspect it, to cross-examine the witness there- O’Dea’s testimony, which BCBSTX has counsel that on, and to introduce in evidence those portions provided: she testified which relate to the testimony of the witness.” she used to Fed. R. Evid. 612. Rule 612’s purpose is to • Because O’Dea reviewed those notes refresh her “promote the search of credibility and before testifying, FRE 612(a)(2) only recollection memory.” Shaffer v. Perry’s Rests., Ltd., requires production of portions O’Dea before her 2018 U.S. Dist. LEXIS 180543, at *7 (W.D. actually used “to refresh memory” for deposition. Tex. Oct. 22, 2018). the purpose of testifying and where “justice requires.” At the deposition, Defendant’s sole basis for refusing to produce the notes was Defendant’s • Portions of the document “unrelated” to argument that discovery had closed and Plain- the witness’s testimony must not be tiff’s demand for the notes was thus an im- disclosed. FRE 612(b). proper “request for document production at this stage of the litigation . . . .” Now, Defend- • Rule 612 requires more than a “cursory ant seeks to assert a privilege by redacting review of the document.” Lubritz v. nearly the entire 5 pages of Ms. O’Dea’s AIG Claims, Inc., 2018 WL 10456239, notes. See Exhibit A, Defendant’s Communi- at *4 (D. Nev. Apr. 18, 2018). There cation and Attachment. Regardless, both of must be “evidence that the witness has Defendant’s arguments are wrong. actually relied upon the document in giving his testimony or that the docu- “[N]umerous federal courts have held that the ment somehow influenced his testimo- attorney-client privilege does not automatical- ny.” Bracamontes v. GeoVera, 2024 ly bar an opponent’s access to such a writing.” WL 2880422, at *6 (E.D. La. June 7, Shaffer, 2018 U.S. Dist. LEXIS 180543, at *7. 2024); Valvoline v. RFG, 2014 WL To be clear, the Trustee is seeking neither De- 12026075 at *4 (S.D. Cal. May, 20 fendant’s counsel’s communications to his 2014) (where witness reviewed docu- client nor his core-work product=. Instead the ment containing privileged and non- Trustee seeks notes written by a non-attorney, privileged material, only that portion re- in her own words, that she admitted she used lied on for specific testimony subject to to refresh her recollection prior to testifying as production). Defendant’s corporate representative. Here, O’Dea testified fully regarding the Specifically, Defendant’s corporate repre- topics, and the Trustee failed to establish sentative Ms. O’Dea unequivocally testified: that any answer was based on her notes. (1) she took 5 pages of notes of her conversa- When asked whether the notes of her con- tion with a BCBS employee and Mr. Ka- versation refreshed her recollection, O’Dea vanaugh during her preparation to testify as testified the conversation “was very fresh in the corporate representative for BCBS; (2) she her mind.” Ex. B, at 76:24-77:05. BCBSTX reviewed those notes in preparation for her has produced the portions of O’Dea’s notes testimony; (3) they helped her remember what relating to her testimony. Ex. A; Ex. B at was discussed during that meeting with the 75:10-76:5. The Trustee has not established BCBS employee; and (4) she used the entirety that O’Dea relied on the unproduced por- of the notes to refresh her recollection before tions in connection with any specific testi- her testimony. Exhibit B, O’Dea Excerpts, p. mony, because she did not. Sporck v. Peil, 74:22-3, 76:21-23, 76:24-9, and 78:3-12. 759 F.2d 312, 317–19 (3d Cir. 1985) (va- cating a Rule 612(a)(2) production order The Trustee requested these notes on the rec- where there was no admission that wit- ord and Defendant refused to produce them. ness’s answers to “specific areas of ques- Id. at p. 77:13-22. The Court must find the tioning were informed by documents he requested production is in the interest of jus- had reviewed”). tice. Given Ms. O’Dea’s unfamiliarity with the underlying issues in this litigation prior to Even if Rule 612 applied, justice would not being deposed as a corporate representative require production of the entire notes. The (id. at p. 18:3-7, 46:16-22), the importance of redacted portion of the notes reflect com- the witness’s credibility in delivering such tes- munications with counsel regarding the timony, and the Trustee’s right to discover case background and role of a 30(b)(6) rep- information bearing on such credibility as well resentative, which were not the subject of as the basis for Ms. O’Dea’s knowledge and O’Dea’s testimony. Courts routinely deny testimony, ordering production of the notes, motions to compel production of privileged with a related limited deposition, serves the documents under Rule 612. See, e.g., Burns interest of justice in this instance. v.
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS WACO DIVISION
JAMES STUDENSKY, RESPONDENT; § § Plaintiff, § § v. § CIVIL NO. W-20-CV-01065-DTG § BLUE CROSS AND BLUE SHIELD OF § TEXAS, MOVANT; § § Defendant. §
ORDER DENYING DISCOVERY REQUEST Before the Court is Plaintiff’s discovery dispute chart (attached to this Order as Exhibit A) that was submitted to the Court on August 12, 2024. The Court heard oral argument on the dispute as part of its August 13, 2024, motions hearing, and ordered Defendant to produce the document at issue (corporate representative Lynn O’Dea’s notes) to the Court for an in camera review. The dispute involves notes taken by Defendant’s corporate representative witness. Before the deposition, and in preparation for her role to testify as a corporate witness, Ms. O’Dea took 5 pages of handwritten notes during conversations with her attorney and another employee of De- fendant. Ms. O’Dea testified that she reviewed the notes in preparation for her testimony, but she never relied on or reviewed the notes to refresh her recollection during the deposition. Following the deposition, Defendant produced a redacted version of the notes. Plaintiff Because the depo- nent reviewed the notes before her deposition, Fed. R. Evid. 612(a)(2) governs, and only requires them to be turned over “if the court decides that justice requires.” Having reviewed the notes and the accompanying deposition transcript, the Court has de- termined that the contents of the document are largely unrelated to her testimony and privileged. As such, the Court determines that justice does not require Defendant to disclose the entirety of the notes to Plaintiff. Plaintiff's request to produce the entirety of Ms. Lynn O’Dea’s notes and for a Zoom deposition concerning the content of those notes is hereby DENIED. SIGNED this 14th day of August, 2024.
A . he he UNITED STATES MAGISTRATE JUDGE
Exhibit A- Discovery Dispute Chart Issue Requesting Party’s Position Responding Party’s Position Trustee seeks Rule 612 states that “if a witness uses a writ- The Trustee seeks production of notes production of ing to refresh memory for the purpose of testi- O’Dea took during meetings involving notes made by fying . . . before testifying, if the court in its counsel and BCBSTX employees in prepa- a corporate discretion determines it is necessary in the in- ration to be a 30(b)(6) witness. The law is representative terests of justice, an adverse party is entitled clear that, at most, the Trustee is entitled during her to have the writing produced at the hearing, to only to portions of the notes relating to meeting with inspect it, to cross-examine the witness there- O’Dea’s testimony, which BCBSTX has counsel that on, and to introduce in evidence those portions provided: she testified which relate to the testimony of the witness.” she used to Fed. R. Evid. 612. Rule 612’s purpose is to • Because O’Dea reviewed those notes refresh her “promote the search of credibility and before testifying, FRE 612(a)(2) only recollection memory.” Shaffer v. Perry’s Rests., Ltd., requires production of portions O’Dea before her 2018 U.S. Dist. LEXIS 180543, at *7 (W.D. actually used “to refresh memory” for deposition. Tex. Oct. 22, 2018). the purpose of testifying and where “justice requires.” At the deposition, Defendant’s sole basis for refusing to produce the notes was Defendant’s • Portions of the document “unrelated” to argument that discovery had closed and Plain- the witness’s testimony must not be tiff’s demand for the notes was thus an im- disclosed. FRE 612(b). proper “request for document production at this stage of the litigation . . . .” Now, Defend- • Rule 612 requires more than a “cursory ant seeks to assert a privilege by redacting review of the document.” Lubritz v. nearly the entire 5 pages of Ms. O’Dea’s AIG Claims, Inc., 2018 WL 10456239, notes. See Exhibit A, Defendant’s Communi- at *4 (D. Nev. Apr. 18, 2018). There cation and Attachment. Regardless, both of must be “evidence that the witness has Defendant’s arguments are wrong. actually relied upon the document in giving his testimony or that the docu- “[N]umerous federal courts have held that the ment somehow influenced his testimo- attorney-client privilege does not automatical- ny.” Bracamontes v. GeoVera, 2024 ly bar an opponent’s access to such a writing.” WL 2880422, at *6 (E.D. La. June 7, Shaffer, 2018 U.S. Dist. LEXIS 180543, at *7. 2024); Valvoline v. RFG, 2014 WL To be clear, the Trustee is seeking neither De- 12026075 at *4 (S.D. Cal. May, 20 fendant’s counsel’s communications to his 2014) (where witness reviewed docu- client nor his core-work product=. Instead the ment containing privileged and non- Trustee seeks notes written by a non-attorney, privileged material, only that portion re- in her own words, that she admitted she used lied on for specific testimony subject to to refresh her recollection prior to testifying as production). Defendant’s corporate representative. Here, O’Dea testified fully regarding the Specifically, Defendant’s corporate repre- topics, and the Trustee failed to establish sentative Ms. O’Dea unequivocally testified: that any answer was based on her notes. (1) she took 5 pages of notes of her conversa- When asked whether the notes of her con- tion with a BCBS employee and Mr. Ka- versation refreshed her recollection, O’Dea vanaugh during her preparation to testify as testified the conversation “was very fresh in the corporate representative for BCBS; (2) she her mind.” Ex. B, at 76:24-77:05. BCBSTX reviewed those notes in preparation for her has produced the portions of O’Dea’s notes testimony; (3) they helped her remember what relating to her testimony. Ex. A; Ex. B at was discussed during that meeting with the 75:10-76:5. The Trustee has not established BCBS employee; and (4) she used the entirety that O’Dea relied on the unproduced por- of the notes to refresh her recollection before tions in connection with any specific testi- her testimony. Exhibit B, O’Dea Excerpts, p. mony, because she did not. Sporck v. Peil, 74:22-3, 76:21-23, 76:24-9, and 78:3-12. 759 F.2d 312, 317–19 (3d Cir. 1985) (va- cating a Rule 612(a)(2) production order The Trustee requested these notes on the rec- where there was no admission that wit- ord and Defendant refused to produce them. ness’s answers to “specific areas of ques- Id. at p. 77:13-22. The Court must find the tioning were informed by documents he requested production is in the interest of jus- had reviewed”). tice. Given Ms. O’Dea’s unfamiliarity with the underlying issues in this litigation prior to Even if Rule 612 applied, justice would not being deposed as a corporate representative require production of the entire notes. The (id. at p. 18:3-7, 46:16-22), the importance of redacted portion of the notes reflect com- the witness’s credibility in delivering such tes- munications with counsel regarding the timony, and the Trustee’s right to discover case background and role of a 30(b)(6) rep- information bearing on such credibility as well resentative, which were not the subject of as the basis for Ms. O’Dea’s knowledge and O’Dea’s testimony. Courts routinely deny testimony, ordering production of the notes, motions to compel production of privileged with a related limited deposition, serves the documents under Rule 612. See, e.g., Burns interest of justice in this instance. v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998); Hanover Ins. Co. v. Plaquemines Requests Relief: Trustee seeks production of Parish Gov't, 304 F.R.D. 494, 500 (E.D. the notes at issue and a Zoom deposition of La. 2015); Telamon v. Charter Oak, 2014 Lynn O’Dea as 30(b)(6) witness concerning WL 12758389 at *2 (S.D. Ind. May 30, the content of the notes. This Zoom deposi- 2014). tion may not exceed one hour. The Trustee’s claim that he needs the notes Trustee requests the Order read “After review- because O’Dea is unfamiliar with the un- ing the parties’ submissions concerning notes derlying issues is a red herring. 30(b)(6) taken by Defendant’s corporate representative, witnesses do not testify from personal the Court ORDERS that Defendant produce knowledge; counsel must prepare them. an unredacted copy Lynn O’Dea’s notes and The Trustee’s justification would compel that Defendant’s produce Ms. O’Dea for a wholesale production of privileged docu- deposition concerning the content of those ments without regard for the actual impact notes on Zoom at a mutually agreeable date they had on witnesses’ testimony, creating and time. The deposition shall not exceed one “a pretext for wholesale exploration of an hour.” opposing party’s files.” Advisory commit- tee’s notes; see also In re Kellogg Brown & Root Inc., 796 F.3d 137 (D.C. Cir. 2015) (reversing order to produce privileged doc- uments relied upon by 30(b)(6) witness). Relief requested: BCBSTX respectfully requests the Court issue the following Or- der: “The Trustee’s requests for production of Lynn O’Dea’s notes and for a Zoom deposition of Ms. O’Dea are hereby de- nied.” Alternatively, should the Court be inclined, BCBSTX is more than comforta- ble having the Court “examine the writing in camera” to preserve privilege and con- firm that O’Dea did not testifying regarding the unproduced portion of the notes. Fed. R. Evid. 612.