See In re:Managed Care Litigation,415 F.Supp.1378 (S.D. Fla.2006)
The hunt for privileged documents in litigation is in some ways like the search for the Holy Grail -- an extended and difficult quest. The issue often arises, and is at its thorniest, when lawyers are forced to give testimony in cases, which is what happened in In re: Managed Care -- where the issue was whether an in-house lawyer’s review of a privileged document in preparation for his 30(b)(6) deposition created an automatic waiver of the attorney-client privilege. The court said no.
Lawyer Was 30(b)(6) Representative
In response to a Rule 30(b)(6) subpoena served by defendants on the American Medical Association (a non-party) requesting testimony about "[a]ny actual or contemplated litigation against any Defendant, including, but not limited to Your assessment o[f] whether to participate as a party in any case consolidated in In re: [M]anaged Care Litigation," the AMA produced an internal lawyer as its representative. Id. at 1379. Because he had not been "privy to all of the Board’s discussions and deliberations related to whether the AMA should join" the underlying litigation as a party, id., he reviewed several documents in preparation for his deposition, including a privileged communication.
Waiver Positions
Arguing automatic waiver, defendants moved to compel production of the privileged document under Rule 612 of the Federal Rules of Evidence. Finding the document privileged, and rejecting the waiver claim, the Special Master nevertheless recommended disclosure, apparently in the interest of justice (although his exact rationale is not clear from the published decision). Id. On objection to the district court, the AMA argued that the recommended disclosure was error, on the grounds that (a) it had not been shown that review of the document "had an impact on the testimony of the witness," and (b) the interests of justice "weigh[ed] against disclosure." Id. at 1379-1380. In response, defendants argued that the AMA had created its own "dilemma" by putting up a witness with no personal knowledge as its 30(b)(6) representative and, further, that the "use of a privileged document to refresh a witness’ recollection results in automatic waiver of the privilege." Id. at 1380.
Balancing the "Interests of Justice" is Required
Echoing the "central importance of the attorney-client privilege to our legal system," id. at 1381, the court reasoned to judgment from the plain language of (and commentary to) Rule 612 -- discerning no room or support in it for defendants’ theory of automatic waiver. Even assuming a privileged communication were used to "refresh" a witness’ memory while or before testifying, it said, waiver is not automatic. For support, it cited the Advisory Committee Notes to Rule 612 -- to the effect that "nothing in the Rule [should] be considered as barring the assertion of a privilege with respect to writings used by a witness to refresh his memory." Id. at 1380.
Essentially finding this language incompatible with defendants’ automatic waiver position, the court turned to the text of the rule itself to conclude that the question of discoverability under Rule 612 "is left to the discretion of the court in the interests of justice," requiring the competing interests at stake to be balanced in a manner "tailored to the particular privilege asserted." Id. at 1380-1381. Noting the "greater protection" owed privileged attorney-client communications, the court held that the:
Id. at 1381.
To this end, observing that "[a]ttorney-client privileged documents are only discoverable upon a showing of waiver," the court reviewed the deposition testimony at issue and reasoned that because "[n]one of [the witness’] testimony during the deposition can be construed" as a waiver, disclosure of the privileged document reviewed in advance of his deposition was not in "the interests of justice." Id.
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