Opinion
02 Civ. 6441 (LAK)
October 15, 2002
ORDER
Plaintiffs' counsel in this case prepared an extraordinarily lengthy complaint, so long that he found it necessary to prepare a 20-page summary which he distributed to plaintiffs for their use in preparing for depositions. He then invoked the attorney-client privilege and work product doctrines to avoid producing the summary. After one plaintiff testified that "it's helping me now to answer" questions at his deposition, defendants moved to compel its production, and the Court directed that it be submitted for in camera review, Auscape International v. National Geographic Society, 02 Civ. 6441 (LAK), 2002 WL 31250727, *2 (S.D.N.Y. Oct. 8, 2002), a review that now has been completed.
As noted previously, there is some tension between Fed.R.Evid. 612, which may require production of documents used by a witness to prepare for testimony, and the attorney-client privilege and work product doctrine. Judge Weinstein has suggested that the tension be resolved as follows:
"If the adverse party demands material that the party producing the witness claims reflects the attorney's thought processes, the judge should examine the material in camera. Unless the judge finds that the adverse party would be hampered in testing the accuracy of the witness's testimony, he or she should not order production of any writings that reflect solely the attorney's mental processes. In arriving at a decision, the judge must weight the significance of the testimony, the availability of other evidence impeaching the testimony, and the degree to which the witness apparently relied upon the writing." 4 Weinstein's Federal Evidence § 612.05[3][e].
The document in question is nothing more than a summary of the complaint that already is a public record, albeit a document of far more manageable length. It contains some opinion work product, but nothing that has not already been made public in the complaint itself, e.g., counsel's views as to the elements of each of the many claims for relief purportedly pleaded. Hence, disclosure of the document would not invade the privacy of the mental processes of plaintiffs' counsel in any significant degree because he already has made those processes public in the complaint. On the other hand, the summary document sets forth factual propositions upon which counsel bases plaintiffs' claims, thus effectively providing a series of allegations which the plaintiff-witnesses in effect were being asked to be sure to remember when deposed. Thus, production of the document almost surely would be useful in testing the veracity of the plaintiffs' testimony.
Given the likely value of the document in cross-examination of the plaintiffs and the lack of any material invasion of attorney opinion work product that would occur by virtue of the document's production, the Court directs plaintiffs to turn over to the defense no later than October 21, 2002 all copies and versions of the document that was provided to plaintiffs in advance of their depositions.
Nor will plaintiffs be heard to inveigh against injustice in this ruling. As Judge Weinstein's treatise makes plain, production was an entirely foreseeable risk of counsel's use of the document in this manner:
"[A]ttorneys should avoid refreshing the recollections of prospective deponents or witnesses with material containing counsel's theories or thought processes. Not only may such documents ultimately fall into opposing counsel's hands if Rule 612 is satisfied, but there are too many risks of unethical suggestions to witnesses when they see such material." Id.
Those risks of suggestions to witnesses are central to the Court's determination that production is appropriate.
SO ORDERED.