Tattletale Portable Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP

276 F.R.D. 573, 86 Fed. R. Serv. 519, 2011 U.S. Dist. LEXIS 97095, 2011 WL 3841657
District Court, S.D. Ohio·Decided August 30, 2011·No. No. 2:10-cv-226·Published

Opinion

OPINION AND ORDER

TERENCE P. KEMP, United States Magistrate Judge.

I. Introduction

On April 18, 2011, defendant Calfee, Halter and Griswold, LLP, took the deposition of Brian Hess, who is the president of plaintiff Tattletale Portable Alarm Systems, Inc. One of the first questions typically posed to a deponent — and one which was put to Mr. Hess — was what he had done to prepare for his deposition.

As it turns out, in order to refresh his memory about dates, Mr. Hess looked at a time line which had been prepared by his attorneys. Calfee’s counsel immediately asked to see a copy. That request, and all subsequent requests, were rebuffed on the grounds that the time line is protected from disclosure by the attorney-client privilege and by the work product doctrine. Calfee has now filed a written motion asking the court to order Tattletale to produce it. The motion is fully briefed. For the following reasons, the Court grants the motion.

II. The Facts

There are not many relevant facts concerning the motion to compel beyond those stated in the introduction. Mr. Hess is the president of Tattletale, and appears to have testified in that capacity earlier in the case. However, on April 18, 2011, he was testifying as an individual witness. The full transcript of this latter deposition does not appear to have been filed with the Court, but from the excerpts submitted by Calfee and from the parties’ briefs, it appears that he was questioned fairly extensively about his reasons for believing that Calfee had some responsibility for making sure that the maintenance fees for the patent at issue in this case were paid in a timely fashion. It also appears that Calfee was not the first law firm to represent Tattletale in connection with the prosecution and maintenance of this patent. In fact, according to Calfee, in the past Mr. Hess has blamed other law firms for failing to pay the maintenance fee. Given this background, Calfee claims that the success or failure of the malpractice claim which Tattletale has [575]*575asserted is heavily dependent on the precise chronology relating to its retention and firing of various lawyers or law firms, including Calfee itself, and how that chronology relates to dates such as when the maintenance fee was to be paid and when, if the patent lapsed as a result of the failure to pay those fees, and at what time Tattletale had the ability to seek its reinstatement.

III. Analysis

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Fed.R.Evid. 612.

This case turns, at least in part, on the application of this Rule. Calfee’s argument, in its purest form, is that any time a witness reviews a document in order to refresh the witness’ recollection, and then gives testimony, any privilege which might previously have attached to the document has been waived. It relies on this language from United States v. 22.80 Acres of Land, 107 F.R.D. 20, 25 (N.D.Cal.1985):

Rule 612 applies to written materials reviewed prior to a deposition. In re Comair Air Disaster Litigation, 100 F.R.D. 350, 353 (E.D.Ky.1983); James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D.Del.1982). Rule 612(2) in particular has been interpreted to permit discovery of writings (or portions thereof) that a witness reviewed before a deposition for the purpose of refreshing his or her recollection; any privilege or work product protection against disclosure is deemed waived as to those portions so reviewed. The court then may order disclosure if, in its discretion, it determines disclosure is in the interest of justice. Fed.Rule Evid. 612(2), Comair, supra, 100 F.R.D. at 353. See also Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8,10 (N.D.Ill.1978).

However, the issue is not quite that straightforward. Even in the 22.80 Acres decision, the court did not simply order the production of the document in question because a witness had used it to refresh his recollection; rather, the court noted that Fed.R.Evid. 612(2) does not make disclosure of such materials automatic, but discretionary, and it went on to balance the competing interests involved before deciding that the document had to be turned over. Those interests were, according to the court, “the objective of full disclosure and ascertainment of the truth that Rule 612 and the federal discovery rules reflect” and “the interest in maintaining the confidentiality of protected material, as is represented by the work product doctrine ....” Id. Thus, unlike a true waiver analysis, where, if waiver is found, the only remaining issue would be the relevance of the document to a claim or defense in the case, even under the approach adopted in the 22.80 Acres case, the goals furthered by the work product doctrine (and, if the document is also protected by the attorney-client privilege, that doctrine as well) must be factored into the analysis.

This point is well-illustrated in Server Technology v. American Power Conversion Corp., 2011 WL 1447620 (D.Nev. April 14, 2011). That court noted that tension exists between Rule 612(2) and Fed.R.Civ.P. 26(b)(3), and cited Parry v. Highlight Indus., Inc., 125 F.R.D. 449, 452 (W.D.Mich.1989), as having adopted a three-part test for reconciling the competing interests involved, including exploring whether any witness coaching has occurred, whether the document (if it is subject to work product protection) is “core work product,” and whether the request for its production is simply a “fishing expedition.” Server Technology, 2011 WL 1447620, at *7. It also cited to the balancing analysis performed in the 22.80 Acres case, which it believed to be consistent with Parry, and ultimately concluded that the redacted portions of the document in question did not [576]*576have to be produced because the witness’ testimony relied primarily on the portions which were produced.

Other decisions (and there are many of them, including cases dealing specifically with time lines like the one at issue here, such as Denman v. Youngstown State Univ., 2007 WL 2781351 (N.D.Ohio September 21, 2007)) cited by the parties represent variations on this theme, and articulate other factors to be taken into account as well. See, e.g., Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D.Md. 1998), a case which, as Tattletale points out, sets for a nine-factor test to be used once it is determined that Rule 612(2) has come into play.

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Tattletale Portable Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, 276 F.R.D. 573, 86 Fed. R. Serv. 519, 2011 U.S. Dist. LEXIS 97095, 2011 WL 3841657 (S.D. Ohio 2011).

276 F.R.D. 573 (Tattletale Portable Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

James Julian, Inc. v. Raytheon Co.
93 F.R.D. 138 (D. Delaware, 1982)
Sporck v. Peil
759 F.2d 312 (Third Circuit, 1985)
In re Comair Air Disaster Litigation
100 F.R.D. 350 (E.D. Kentucky, 1983)
United States v. 22.80 Acres of Land
107 F.R.D. 20 (N.D. California, 1985)
Parry v. Highlight Industries, Inc.
125 F.R.D. 449 (W.D. Michigan, 1989)