Litigation

And What Documents Did You Review? And Where Are They?

By Bruce Nye

    While the rest of us, including CalBizLit, were suffering post-turkey dinner tryptophan fatigue (or were flat-out worn out for other reasons not related to the bird), Dan Hull was blogging away at What About Clients, where he reminded readers about the use of F.R.E. 612 in Federal case depositions.  You know the drill:  "What documents did you review before this deposition?  Did you review them to refresh your recollection?  Please turn them over now." 

    Well, CalBizLit, of course, is all about the California angle, so WAC's post got me thinking about the analogous situation in our state court practice.  Like F.R.E. 612, our Evidence Code section 771, subd. (a), provides that:

    But the problem in California is with the rest of this code section.  If the witness fails to produce the document, the remedy is to strike his or her testimony.  And since the adverse party is the one taking the testimony at a deposition, the sanction of having that deposition testimony stricken isn't any too helpful. 

    Furthermore, the witness is excused from producing the document used to refresh testimony if the document:

    So the law in California is pretty weak.  And while it's very common for lawyers at deposition to ask one of the foundational questions:  "What documents did you review in preparation for this deposition," they often fail to follow up by demonstrating the documents were used to refresh the witness's recollection, and they often don't know what to do if they are refused documents once they've laid that foundation.

    Here's one solution:  Our Code of Civil Procedure section 2025.220, subd. (a), part (1), provides that a notice of taking deposition may include "[t]he specification with reasonable particularity of any materials or category of materials to be produced by the deponent."  And that means the witness has to produce those materials.  So, shouldn't the notice state that the witness is required to bring to the deposition "all documents or other things reviewed by the witness in preparation for the deposition, for the purposed of refreshing recollection or otherwise"  ?  Then, when Mr. Jones is asked what documents he reviewed in preparation for the deposition, and describes the company's ledgers from 2002 through 2006, but he didn't bring them along, don't we adjourn the deposition until the documents are produced?

    I think we do.

Full post as published by CalBizLit on December 01, 2008 (boomark / email).