Episode 92 - The Deponent is Taking Notes While Testifying. Can You Demand Them?

In this episode, Jim Garrity ponder the issue whether you're immediately entitled to obtain notes taken by a deponent while testifying or, to go a step further, the notes of non-attorney witnesses observing the depositions of others. As always, Garrity offers practice tip for those seeking such notes and those opposing their production. Cases mentioned in the show are listed below.And one more thing? Would you consider leaving us a 5-star rating, a positive review, wherever you get your podcasts? Our production staff work their tails off, and seeing a new rating is a great way to say thank you for their efforts. We appreciate it!SHOW NOTESKnowledge A-Z, Inc., 2007 WL 4553347, No. 1:05-CV-1019-RLY-WTL (S. D. Ind. Dec. 19, 2007) (corporate president took notes during his individual deposition and while testifying as corporate representative, at the conclusion of which counsel for defendant demanded the notes; held, whether plaintiff’s assertion of attorney-client privilege is correct or not, “the notes clearly are protected by the work product privilege,” and “Accordingly, they are not discoverable and the motion to compel is denied”)Brown v. Northrup Grumman Corp., 2013 WL 3816659, Case No. CV-12-1488(JS)(ETB) (E.D.N.Y. 2013) (plaintiff sought to obtain handwritten notes taking by representative of corporate defendant during plaintiff’s deposition; held, notes were protected by attorney work-product doctrine, even if witness testified he was taking them of his own volition, where he took them for the purpose of sharing his observations with defense counsel and, further, partial production of notes did not constitute waiver of complete set of notes)Milwaukee Concrete Studios, Ltd., v. Greeley Ornamental Concrete Products, Inc., 140 F.R.D. 373 (E.D. Wisc. December 9, 1991) (notes taken by employees of plaintiff during other witnesses depositions were not discoverable in were protected by the attorney-client privilege because they were preparing materials on behalf of their employer)Moore v Kingsbrook Jewish Medical Center, 2012 WL 107800, Case Nos. 11-CV-3552 and 11-CV-3624 (E. D. N. Y. March 30, 2012) (pro se deponent’s notes, taken during her deposition, were protected by work-product privilege just the same as if she had a lawyer taking notes during her deposition for her)Jones v. Bank of America, N.A., 2015 WL 180916, Case No. 3:14-CV-11531 (S. D. W. Va. April 21, 2015) (30(b)(6) deponent brought handwritten notes of previous interviews with defense employees to deposition, answered questions about them, and read portions of her notes into the record; held, assertion of attorney-client privilege, in the complete absence of objections during the deposition, resulted in waiver and were unavailing to avoid production)Valvoline Instant Oil Change Franchising, et al., v. RFG Oil, Inc., 2014 WL 12026073 (S. D. Cal. May 20, 2014) (deponent’s limited use during deposition of timeline prepared at direction of counsel resulted in partial waiver, but only to those portions of the timeline that the witness actually reviewed and testified from during deposition; Rule 612’s provisions that allow for the disclosure of documents used to refresh memory for the purpose of testifying requires careful analysis based on the extent to which documents were consulted and relied upon, balanced against the unnecessarily broad waiver of privilege)Flores v. Wall, 2012 WL 4471106, Case No. 11-69-m (D. Rhode Island Sept. 6, 2012) (“The practice of deponents referring to notes during their depositions is not uncommon”)