Monthly Archives: April 2013

“Attorneys Beware”: Documents Reviewed By a Witness To Refresh His/Her Recollection Before A Deposition May Be Discoverable

Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP.  He can be reached at  He maintains a website at and can be found on Twitter @LegalVictor1.    

     A debate with a respected and experienced colleague during a recent examination before trial resurrected the issue of whether or not a party/witness was required to produce documents reviewed in preparing for the deposition upon oral examination, on the one hand, and the extent, if any, that production of such documents was protected by the attorney-client and/or work product privileges, on the other.

     An analysis of the case law suggests that the answer to the question must be decided on a case-by-case basis, in general, and may require an in camera review by the Court, in particular.

     In People of the State of New York v. Gezzo, 307 N.Y. 385 (1954), the Court of Appeals was faced with the post-conviction question, in a criminal case, of whether the trial court properly ruled that the defense was not entitled to inspect a memorandum used by a police inspector to refresh his recollection before testifying at the jury trial. Continue reading