Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP. He can be reached at email@example.com. He maintains a website at www.LegalVictor.net 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.
The Court of Appeals reversed the conviction and ordered a new trial:
It may be that an inspection of the memorandum would not have assisted defendant in any way. But, as was said in Tibbetts v. Sternberg (66 Barb. 201, 203, supra): “The production of the paper might have been of no value to the defendant, but it is the principle thus sought to be established that is mischievous and dangerous. the right of a party to protection against the introduction against him of false, forged or manufactured evidence, which he is not permitted to inspect, must not be invaded at hair’s breadth. It is too valuable to be trifled with, or to permit the court to enter into any calculation as to how far it may be encroached upon without injury to the party”. Or, as was written in Schwickert v. Levin (76 App. Div. 373, 375, supra): “The defendant had the right to see, and to use on cross examination, any memorandum or writing which had served to refresh the memory of the witness on his direct examination. As the conversation was material, the defendant might possibly have been prejudiced by this limitation upon his cross-examination, and, therefore, I think that a new trial should be ordered.”
Id. at 393-94.
In Alfredsen v. Loomis, 148 N.Y.S.2d 468 469 (1956), a wrongful death action, “the captain of the vessel upon which the decedent was employed at the time of the accident that allegedly resulted in his death, was examined before trial by plaintiff’s attorney.” The witness “was unable to recall various matters relating to the occurrence”[;] acknowledged that he had given a statement to defendant’s attorney; the statement was in his possession at the time of the examination; and “[t]he witness said that he referred to [the statement] the day before [the deposition] for the purpose of refreshing his recollection.” A request by plaintiff’s counsel for production of the statement was refused.
Plaintiff moved the Court “for an order directing defendant to produce [the]statement”[;] and the Court granted the application:
It seems to the court that, in the circumstances here, plaintiff’s counsel should have been permitted to see, and to question the witness regarding the statement referred to. There can be no question that it is the right of a party to inspect a memorandum used by a witness while testifying upon a trial, whether he reads the contents or uses it only to refresh his memory…While the court has been unable to find any authority directly on the point, there would seem to be no reasonable basis for denial of the right where the production of the statement or memorandum is requested on an examination before trial. In the situation now before the court, it does not appear that the statement was actually used by the witness during the examination. It was, however, used the day before for the purpose of refreshing his recollection, and he stated that his memory had been refreshed by reference to it. The time when the memorandum of statement was referred to by the witness, whether at the trial or examination or prior thereto, would seem unimportant…The important fact is that it was used by him to refresh his recollection and that it accomplished that purpose.
Id. at 469-70.
In Matter of Van Gorder, 10 Misc.2d 648, 176 N.Y.S.2d 108 (Surr. Ct. Westchester Co. 1957), a contested probate proceeding, the proponent of the will, at his examination before trial as an adverse party, used “Exhibit 8”, a photostatic copy of a writing prepared by his attorney, “in order to refresh proponent’s recollection.” “Exhibit 8” was a typewritten copy of “Exhibit 7” – “a yellow paper containing notes which proponent’s attorney made in the presence of his client at the time of [a] conference [with his client].” The contestant applied to the Court “for an order to compel the production, examination and reproduction of “Exhibit 8”; and the Surrogate denied the application:
Proponent contends that these memoranda consisting of communications made by a client to one of her attorneys in the course of professional employment are confidential communications which are privileged under section 353 of the Civil Practice Act.
Section 353 [of the Civil Practice Act] provides in substance that an attorney shall not be required to disclose a communication made by his client to him or the advice given thereon in the course of his professional employment and extends to any employee of such attorney. By its terms the statute would appear to be limited to a prohibition against the disclosure by an attorney or his employee of a confidential communication, as distinguished from a prohibition extending to a disclosure by the client. There is, however, sound authority to the effect that under the modern theory the client’s own testimony is equally privileged, since the privilege is for the protection of the client in order to permit freedom of consultation with an attorney, and would plainly be defeated if the disclosure of such conference, although not compellable from the attorney, were obtainable from the client[.]
The rule against the disclosure of confidential communications had its origin in the employment of attorneys for parties litigant following the custom in ancient times of prosecuting or defending actions or proceedings by the parties in person, and to extend to such parties the immunity which they would have enjoyed but for the employment of attorneys to represent them.
Id. at 649, 176 N.Y.S.2d at 1019-20.
In Falk v. Kalt, 44 Misc.2d 172, 253 N.Y.S.2d 188, 189 (Sup. Ct. Suffolk Co. 1964), “Defendant’s examination of plaintiff before trial was adjourned after counsel for plaintiff refused to allow his adversary perusal of a document used to refresh the memory of that plaintiff during the examination.” Defendant applied to the Court for an order compelling production of the document; and the Court denied the motion:
The key to the dispute here is the issue raised with regard to documents used to refresh plaintiff’s recollection. It is plaintiff’s position that these are confidential communications between client and attorney and therefore not available to opposing counsel for any reason or purpose, notwithstanding CPLR 3113, subd. (c) and general rules of evidence which make such writing open to the use and inspection of opposing counsel…A ruling on this issue is asked by plaintiff, the examination of plaintiff to then proceed subject to that ruling, to be followed by plaintiff’s examination of defendant.
* * *
It is this court’s opinion that an adversary’s right to examine writings used to refresh memory must be limited by the greater sanctity accorded confidential communications between attorney and client…That part of the motion to inspect the document under discussion is therefore denied…
Id. at 173-74, 253 N.Y.S.2d at 189-90.
In Doxtator v. Swarthout, 38 A.D.2d 782, 328 N.Y.S.2d 150, 151 (4th Dept. 1972), a medical malpractice action, “the defendant doctor stated [at her examination before trial] that she had reviewed some notes made after the incident which she described as ‘a resume of what I considered the pertinent facts that I wanted to recall’ and that these were used by her to refresh her recollection with respect to the details of her testimony.” Plaintiff applied to the Court for discovery and inspection of the notes; Supreme Court denied the application; and the Fourth Department reversed:
In light of the liberal construction required to be accorded pretrial disclosure…the rule regarding inspection applied at any examination before trial should be no more stringent than the rule applicable to trial testimony…Such being the case, the real issue to be decided is whether the use of these notes prior to testifying entitles plaintiff to discover and inspect them. We have concluded that there are persuasive reasons to permit such an inspection. It is well-settled law that an adversary has a right to inspect any writing used by a witness to refresh his recollection while on the stand…Two of the leading texts on evidence in New York favor application of the same rule to writings consulted by a witness before trial as to those during trial (Richardson, Evidence [9th ed.], § 480, pp. 490-491; 3 Wigmore, [*152] Evidence [3d ed.], § 762, p. 140) for the reason that the “risk to the adversary is precisely the same whether the witness refreshes his recollection by consulting a writing before trial or by consulting it while on the witness stand during trial” (Richardson, evidence [9th ed.], p. 490-491. We think it a sound rule that writings used prior to testifying for the purpose of refreshing the memory of a witness be made available to the adversary whether at the trial or at a pretrial examination. The reason for permitting inspection is well stated in Tibbetts v. Sternberg (66 Barb. 201, 202-203) as follows: “If the witness cannot be compelled to produce it, he might use documents made for him by the party calling him, of the accuracy of which he knows nothing. The right of a party to protection against the introduction against him of false, forged or manufactured evidence, which he is not permitted to inspect, must not be invaded by a hair’s breadth.” Finally, whatever privilege may have attached to these notes made by defendant as “material prepared for litigation”, it seems to us should be deemed waived when the party’s deposition testimony is based, at least in part, on that material. When these notes were used by defendant to refresh her recollection, they became material affirmatively used in litigation and thus removed from the protection afforded under discovery practice, because her adversary then had a legitimate interest in inspecting this material in order to conduct a meaningful examination.
Id. at 782, 328 N.Y.S.2d at 151-52.
In E.R. Carpenter Company v. ABC Carpet Co., Inc. 98 Misc. 2d 1091, 1092, 415 N.Y.S. 2d 351, 352 (Sup. Ct. New York Co. 1979), a suit for goods sold and delivered, “[t]he defendant moved for an order directing plaintiff to allow discovery and inspection of a 23-page memorandum [from the witness, plaintiff’s employee, to plaintiff’s counsel] used to refresh the recollection of a witness prior to deposition before trial. The refreshment of recollection occurred 10 or more years after the events in question and 9 years after the memorandum was written.” Supreme Court granted the application:
The facts are as follows: in 1969, plaintiff sued for goods sold and delivered to defendant in the period from 1965 through 1968. Defendant denied the allegations and counterclaimed for breach of warranty, misrepresentation and fraud. In preparation for this litigation, a series of questions was presented to plaintiff. In response, Herbert Hoover, then an executive employee of Carpenter, forwarded the afore-mentioned 23-page memorandum to the Lyon Furniture Mercantile Agency, a collection agent for Carpenter. In 1970, Hoover left his employment with plaintiff for another position.
Eight years later, in 1978, plaintiff indicated that Hoover’s testimony was needed for trial but that Hoover would not come to New York to testify. An order of this court was subsequently obtained, directing deposition of the witness in London, England, where he was residing. During the course of the lengthy deposition (in May, 1978), Hoover admitted that in February, 1978, three months prior to the deposition and in preparation for trial, he used his 1969 memorandum to refresh his recollection. Defense counsel demanded inspection of this document. Plaintiff refused on the ground that the writing was intended as a confidential communication to plaintiff’s counsel and was therefore protected by the attorney-client privilege. This motion followed.
If the document were not cloaked with the attorney-client privilege at the time it was written in 1969, then it obviously should not be protected from inspection by opposing counsel at this time.
On the other hand, if plaintiff could establish the existence of the privilege in this case, then this court must determine whether the privilege was waived when Hoover used the memorandum in February, 1978 to refresh recollection. This a most difficult question as it seemingly places the essential attorney-client privilege in direct conflict with the just as essential right of cross-examination. While this court is reluctant to establish a scale of importance for such rights and privileges, we cannot be unmindful of the modern trend toward greater disclosure as well as to basic considerations of fair play[.]
* * *
As a general rule, any writing that is used to refresh recollection for testimony may be inspected by opposing counsel and used to test the credibility of the witness. This is based on the theory that once the witness’ recollection has been refreshed, he testifies thereafter as a result of such refreshed recollection. This right of inspection has been held to apply to writings consulted by witness while on the stand at trial (People v. Gezzo, 307 NY 385) as well as to those writings consulted before trial. (Doxtator v. Swarthout, 38 AD2d 782; Alfredsen v. Loomis, 148 NYS2d 468). As the court stated in Alfredsen at page 470: “The time when the memorandum was referred to by the witness, whether at the trial or examinations or prior thereto, would seem unimportant. The important fact is that it was used by him to refresh his recollection and that it accomplished that purpose.” Certainly the risk to an adversary is precisely the same whether the witness refreshes his recollection by consulting a writing before trial, as in the instant case, or by consulting it while on the witness stand during trial.
Id. at 1092-93, 415 N.Y.S.2d at 352-53.
The Court took note of several “special circumstances of the instant case” including, “there was a considerable length of time (10 years or more) separating the events in question from the refreshment of recollection, thereby increasing the likelihood that Hoover had in fact relied on the 1969 memorandum for his May, 1978 testimony.”
Id. at 1094, 415 N.Y.S.2d at 354.
In Herrmann v. General Tire and Rubber Co., Inc., 79 A.D. 2d 955, 435 N.Y.S.2d 14 (1st Dept. 1981), after a jury verdict in a personal injury action, the Appellate Division reviewed the trial court’s decision to deny plaintiff an opportunity to listen to a tape made by defendant’s insurance carrier of a conversation with Dr. Nathan Botwin. The doctor was a witness on defendant’s behalf whose medical opinion was allowed into evidence at trial by way of his deposition testimony. The First Department held that plaintiff’s counsel was entitled to hear the tape:
[T]he court improperly excluded the testimony of the witness Di Salvo, an employee of the defendants, to whom complaint was made by the plaintiff within minutes after the accident. This testimony was offered to show plaintiff’s condition, but was improperly excluded for the reason that Di Salvo was not a witness to the occurrence itself. It was not necessary that Di Salvo be a witness to the occurrence since he was called not to prove liability but merely the condition of the plaintiff immediately after the accident. This became particularly significant in the light of the fact that the court permitted the defendants to introduce in evidence the opinion testimony of Dr. Nathan Botwin as to plaintiff’s condition, by way of deposition. At the time of the deposition and trial, the doctor was retired and living in Florida. At the time of the accident, Dr. Botwin, an internist, claimed to have been 15 feet from the point of the accident. He did not examine plaintiff as a patient. Nevertheless, the trial court permitted defendants to read into evidence portions of his deposition in which he testified that he did not render medical assistance at the scene, that none was asked of him and that in his opinion there was no occasion to offer assistance. Plaintiff was entitled to an instruction to the jury that the doctor was not expressing an expert opinion but was just a lay witness. Plaintiff was also entitled to examine a tape recording made by defendants’ insurance carrier when it first contacted the doctor. The tape had been used to refresh the recollection of Dr. Botwin prior to the deposition. As a document used for such purpose, plaintiff was entitled to have it made available. Although the court listened to the tape in camera and ruled it was not inconsistent with the deposition, this is not sufficient. Plaintiff’s counsel was entitled to hear it and make his own determination as to whether he wished to use it. The court’s ruling that the tape was privileged as attorney’s work product was erroneous. It has been used to refresh the witness’ recollection before the deposition. Any privilege was waived by such use (Doxtator v. Swarthout, 38 AD2d 782).
Id. at 955, 435 N.Y.S.2d at 15-16.
In Merrill Lynch Realty Commercial Services, Inc., v. Rudin Management Co., Inc., 94 A.D. 2d 617, 462 N.Y. 2d 16 (1st Dept. 1983), an action to recover a real estate brokerage commission, the Appellate Division reviewed an order of Supreme Court “granting plaintiff’s motion for a protective order against discovery sought by defendant-appellant, Drexel, Burnham, Lambert, Inc., of a document, deeming it privileged and irrelevant[.]” The First Department reversed:
Plaintiff alleges that it entered into an agreement with appellant Drexel, Burnham to act as its broker to procure space in lower Manhattan. Plaintiff claims that thereafter on July 22, 1981, Drexel, Burnham informed by telephone plaintiff’s officer, Redmond, that another would act as Drexel, Burnham’s broker but that plaintiff would be protected on its commission on space which plaintiff had found at 55 Broad Street. Drexel, Burnham leased that space and plaintiff is suing to recover the commission. At his deposition Redmond disclosed that, a few days after the July 22 call and after consulting plaintiff’s outside counsel, he drew up a chronology covering the dealings between plaintiff and Drexel, Burnham from December, 1980 to July, 1981. He also stated that he had reviewed the chronology in preparation for his deposition. Drexel, Burnham served a notice of discovery and inspection of the chronology against which plaintiff obtained the protective order that is under appeal. We find that the chronology is relevant and that any privilege adhering to it has been waived (Herrmann v. General Tire & Rubber Co., 79 AD2d 955; Doxtator v. Swarthout, 38 AD2d 782). In the latter case a defendant doctor in a malpractice action had made some notes as an aide-memoire after the concerned incident and used them to refresh her recollection prior to her deposition. The Fourth Department held it “a sound rule that writings used prior to testifying for the purpose of refreshing the memory of a witness be made available to the adversary whether at the trial or at pretrial examination”… . It held that the privilege of such material is waived when it becomes the basis of pretrial testimony and that the adversary has a legitimate interest in inspecting it. By the Herrmann decision this department has concurred with the find of Doxtator.
Id. at 617, 462 N.Y.S.2d at 16-17.
In Geffers v. Canisteo Central School District No. 463201, 105 A.D. 2d 1062, 482 N.Y.S. 2d 635. 636 (4th Dept. 1984), the Appellate Division summarily affirmed an order denying discovery of a memorandum that was prepared by an attorney and used by his client in preparing for a deposition upon oral examination:
Special Term was correct in denying discovery of a memorandum prepared by an attorney as part of his work product. The fact that the memorandum was reviewed by his client in preparation for an examination before trial does not constitute a waiver of the privilege under CPLR 3101(subd[c])[.]
In Slotnik v. State of New York, 129 Misc. 2d 553, 554 493 N.Y.S. 2d 731 (Ct. of Cl. 1985), an action for wrongful death and conscious pain and suffering, the Court addressed “the issue of whether the privilege afforded a document by [the Education Law] is waived when the writing is used to refresh the recollection of a witness at a deposition.” The Court conducted an in camera inspection of the Downstate Medical Center “Report of the Mortality Review” and other documents, and noted that:
They are patently products of an in-house quality-care review at Downstate. Thus, the privilege afforded by Education Law § 6527(3) would normally be applicable as a shield to their disclosure…That statute precludes discovery of records of a committee having the responsibility of evaluation and improvement of “the quality of care rendered in a hospital as defined in article twenty-eight of the public health law” (Education Law § 6527.) It is uncontested that Downstate is a facility within the purview of this provision.
Id. at 554, 493 N.Y.S.2d at 731.
The Court of Claims continued that:
Generally, an adversary has the right to examine any writing used by a witness to refresh his recollection at trial (People v. Gezzo, 307 NY 385; Richardson, evidence § 467 [10th ed].) This rule has been extended to include the disclosure of a document used by a witness at pretrial examination. (Doxtator v. Swarthout, 38 AD2d 782; see, Fisch, New York Evidence § 333 [2d ed.) The reason behind this requirement is to prevent a witness from using a writing that may furnish him with a false recollection and to protect a party against “the introduction against him of false, forged or manufactured evidence, which he is not permitted to inspect”. (Tibbetts v. Sternberg, 66 Barb 201, 203.)
Where the writing that is employed would otherwise be privileged, use by the witness to refresh his recollection serves as a waiver. This principle has been applied in cases involving the privileges attaching to material prepared for litigation (Doxtator v. Swarthout, 38 AD2d 782, supra), an attorney’s work product (Herrmann v. General Tire & rubber Co., 79 AD2d 955), and the attorney-client privilege (Carpenter Co. v. ABC Carpet Co., 98 Misc. 2d 1091). (See also, Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 61; cf. Geffers v. Canisteo Cent. School Dist No. 463201, 105 AD2d 1062).
Id. at 554-55, 493 N.Y.S.2d at 732 (citations omitted).
and concluded that:
Education Law § 6527(3) was enacted to provide a “certain degree of confidentiality for medical review committee meetings” so that free and open discussion concerning the improvement of health care would not be discouraged…However, the confidentiality created by this is not absolute. Specifically “the proceedings [and] records relating to performance of a medical review function” shall not be subject to disclosure “except as provided by any other provision of law.”…
We hold this latter phrase to mean case law as well as statute… Consequently, pertinent case law requiring production of otherwise privileged documents is applicable and the writings in question are discoverable.
Underlying this determination is the fact that Dr. Brecher effectively waived any of defendant’s rights with respect to these documents when he used them to refresh his recollection[.]
Id. at 555, 493 N.Y.S.2d at 732 (citations omitted).
In Rouse v. Weisenburn, 115 A.D. 2d 162, 495 N.Y.S. 2d 496 (3d Dept. 1985), the Appellate Division reversed an Order of Supreme Court that denied the motion of defendants to compel disclosure. The Appellate Division summarized the facts:
Plaintiff commenced this medical malpractice action in October 1981. In May 1984, during the examination before trial of plaintiff, she stated that she had, just prior to the pre-trial examination, refreshed her recollection of the events surrounding the malpractice action by reviewing a diary kept by her mother. The diary, according to plaintiff, was a day-by-day account of plaintiff’s medical treatment and was kept by her mother at the direction of certain unidentified attorneys in New Jersey. Defendants Elwood G. Weisenburn, Robert Chaloner and Joseph Cally…all physicians, requested a copy of the diary and, after plaintiff refused such request, moved for an order compelling disclosure. Special Term denied the motion, concluding that the diary was material prepared for litigation and that defendants had not shown that withholding it would result in injustice or undue hardship (see, CPLR 3101[d]).
Id. at 162, 495 N.Y.S.2d at 496.
and applied the law to the facts:
We reverse. In so doing, we need not reach the issue of whether withholding the diary would result in injustice or undue hardship, for we are of the opinion that plaintiff waived whatever conditional privilege that may have existed with regard to the diary when she used it to refresh her recollection prior to her deposition (see also, Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 617; Herrmann v. General Tire & Rubber Co., 79 Ad2d 955, 956). Where, as here, a witness testifying at a pre-trial examination uses some writing to refresh her memory and bases her deposition testimony on that writing, any claim that the writing is privileged as having been prepared for litigation has been waived…Plaintiff’s attempt to distinguish the cases in support of this rule on the ground that it was not plaintiff herself but, rather, plaintiff’s mother who had kept the diary is without merit in light of the fact that the reason behind the aforementioned rule is to afford opposing counsel an opportunity to review the writing in question so that he might conduct a meaningful examination with regard thereto (see, Doxtator v. Swarthout, supra).
Id. at 162-63, 495 N.Y.S.2d at 496-97.
In Grieco v. Cunningham, 128 A.D. 2d 502, 512 N.Y.S. 2d 432 (2d Dept. 1987), a post-jury verdict appeal in an action to recover damages for personal injuries, the Second Department summarily affirmed a ruling of Supreme Court that directed “production of two written statements[:]”
The plaintiffs claim that the trial court erred in directing production of two written statements, one made by the plaintiff Vincent Grieco before trial and one made b a plaintiffs’ witness, as these writings were privileged as attorney’s work product and pursuant to the attorney-client relationship (see, CPLR 3101[b], [c]). We disagree.
Any privilege under CPLR 3101 was waived when Vincent Grieco used his written statement prior to his deposition to refresh his recollection as to the events of the incident, and when the plaintiffs’ witness reread her statement prior to the trial for the same purpose. The defendant was thus entitled to have the statements made available to him and to use them in cross-examination (see, Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 617, Herrmann v. General Tire & Rubber Co., 79 AD2d 955, Doxtator v. Swarthout, 38 AD2d 782; see also, Richardson, Evidence § 467 [Prince 10th ed]; 3 Wigmore, Evidence §§ 762, 763 [Chadbourn rev]).
Id. at 502, 512 N.Y.S.2d at 432.
In Hayes v. Henault, 131 A.D. 2d 930, 933 516 N.Y.S. 2d 798, 801 (3d Dep’t 1987), an action arising out of a motorcycle accident, the Appellate Division considered several issues after a jury verdict in favor of plaintiffs that was set aside by Supreme Court. The Third Department directed a new trial and, in doing so, addressed certain evidentiary rulings in the Court below that were likely to arise again upon the remand. In particular, the Appellate Division ruled, as follows, that a party is not entitled to see a document that a witness uses to refresh his recollection “until the witness actually uses the document to refresh his recollection[:]”
Defendant also argues that Supreme Court erred in directing her attorney to turn over to the Politis’ attorney a written statement given by a police officer to defense counsel. While defendant contends that the statement was privileged as either the attorney’s work product or material prepared for litigation (see, CPLR 3101[c], [d], no such objection was advanced at trial. Defendant’s attorney objected to production of the statement on the ground that it had not yet been used by the witness to refresh his recollection. In fact, he conceded that if the witness later so used the statement, he would turn it over to the Politis’ attorney (see, Herrmann v. General Tire & Rubber Co., 79 AD2d 955, 956; Doxtator v. Swarthout, 38 AD2d 782). Nonetheless, we agree that Supreme Court erred in directing defendant’s attorney to turn the statement over to his adversary. Neither the attorney for the Politis nor the court offered any legal authority for such holding. It appears that they were relying on the principle that an adversary has the right to inspect any writing used by a witness to refresh his recollection (Richardson, Evidence § 467, at 457-458 [Prince 10th ed]), whether it is used at the time the witness is testifying or prior to trial (see, Herrmann v. General Tire & Rubber Co., supra). That principle does not apply until the witness actually uses the document to refresh his recollection. Here, the Politis called the police officers on their direct case. In beginning his direct examination, the Politis’ attorney asked the officer if he had given a statement to defendant’s attorney. When he replied in the affirmative, the statement was ordered to be turned over. The was error. The purpose of turning the statement over is for cross-examination. Since the officer had not even testified for defendant at that point, the Politis’ attorney was not entitled to examine the statement. To hold otherwise would encourage attorneys to call their adversaries’ witnesses as their own for the purpose of obtaining any statements made to their adversaries.
Id. at 933-34, 516 N.Y.S.2d at 801.
In Stern v. The Aetna Casualty & Surety Company, 159 A.D. 2d 1013, 552 N.Y.S.2d (4th Dept. 1990), the Fourth Department summarily modified an Order of Supreme Court that limited discovery and inspection of defendant’s files “to only those documents predating the commencement of [the]action.”:
The record of the examination before trial discloses that Aetna’s representative reviewed the entire file prior to testifying at his deposition. “We think it is sound [r]ule that writings used prior to testifying for the purpose of refreshing the memory of a witness be made available to the adversary whether at the trial…or at pretrial examination” (Doxtator v. Swarthout, 38 AD2d 782). Where, as here, a witness testifying at a pretrial examination uses some writing to refresh his recollection and bases his deposition testimony on that writing, any claim that the writing is privileged as having been prepared for litigation has been waived (Rouse v. County of Greene, 115 AD2d 162; Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 617; Doxtator v. Swarthout, supra).
Id. at 1013, 552 N.Y.S.2d at 73 (citation omitted).
In McDonough v. Pinsley, 239 A.D. 2d 109, 657 N.Y.S. 2d 33 (1st Dept. 1997), the First Department summarily modified an Order of Supreme Court that “denied defendant’s motion to compel production of a document used by plaintiff to refresh his recollection at his deposition[:]”
Any privilege protecting the subject document from disclosure was waived by plaintiff when he used it to refresh his recollection (Grieco v. Cunningham, 128 AD2d 502, CPLR 3116[c]). The record does not support plaintiff’s assertion that defendant has already inspected the relevant portion of the document, and, in any event, defendant is entitled to inspect the entire document.
Id. at 109, 657 N.Y.S.2d at 34.
In Crawford v. Lahiri, 250 A.D.2d 722, 673, N.Y.S.2d (2d Dept. 1998), an action to recover damages for wrongful death based upon medical malpractice, Supreme Court denied plaintiff’s motion to compel production by New Rochelle Hospital Medical Center of records relating to the application of Dr. Babar Mirza, the treating physician, for emergency room privileges and documents reviewed by the doctor in preparation for his deposition. The Second Department summarily reversed:
Further, if Dr. Mirza reviewed any records regarding the plaintiff’s decedent’s treatment in preparation for his testimony, he was required to divulge that fact and turn over the records, whether or not his review was expressly admitted to be for purposes of refreshing his recollection (see, e.g. Chabiaca v. Schneider, 213 AD2d 579; Stern v. Aetna Cas.& Sur. Co., 159 AD2d 1013; see, also, McDonough v. Pinsley, 239 AD2d 109), and whether or not the material had been supplied to him by his attorney (see, e.g., Grieco v. Cunningham, 128 AD2d 502; Herrmann v. General Tire & Rubber Co., 79 AD2d 955).
Id. at 727, 673 N.Y.S.2d at 191.
In Maisch v. Millard Fillmore Hospitals, 278 A.D.2d 838, 718 N.Y.S.2d 776 (4th Dept. 2000), the Appellate Division summarily affirmed so much of an Order of Supreme Court that denied production of certain daily hospitals logs:
The court properly denied that part of defendant’s motion seeking disclosure of certain daily logs documenting the condition of plaintiffs’ daughter. The daily logs were made in anticipation of litigation, and thus are conditionally privileged (see, CPLR 310[d]; Hannold v. First Baptist Church, 254 AD2d 746, 747). Defendant failed to establish that he would suffer undue hardship if disclosure of the logs were denied (see, CPLR 3101[d]. Defendant also failed to establish that the daily logs were used to refresh the recollection of plaintiffs with respect to their deposition testimony, and thus that the privilege was thereby waived (see, Hannold v. First Baptist Church, supra, at 747).
Id. at 838, 718 N.Y.S.2d at 777.
In Christie’s Inc., v. Zirinsky, 17 Misc.3d 1123A, 851 N.Y.S.2d 68 (Sup. Ct. New York Co. 2007), an action by the tenant under a long-term warehouse lease seeking damages arising from a roof replacement, Supreme Court denied a request for production of documents prepared by Ronald Ogur, defendants’ engineer:
The parties further dispute whether Ogur should be required to produce written materials he prepared regarding the roof. Christies identifies two categories of such materials: 1) memoranda and notes which Ogur generated and gave to defendants’ attorney, and which Ogur reviewed in preparation for his deposition…and 2) letters from Ogur to Zirinsky or his counsel or from Zirinsky or his counsel to Ogur, made in the period from May 24, 2004 through November 29, 2005, as identified in defendants’ privilege log[.]
In seeking the first category of materials, Christie’s apparently relies on the general precept that a party is entitled to inspect all materials used by a witness before testifying at a deposition or at trial to refresh recollection (See Prince-Richardson on Evidence, § 6-215 [11th ed]). However, the right to inspect should not apply, and any privilege applicable to the materials should not be deemed waived, unless the witness has actually used the material to refresh recollection and the material has “become the basis of pretrial testimony.” (See Merrill Lynch Realty Comm. Servs. Inc. v. Rudin Mgt. Co. 94 AD2d 617, 462 N.Y.S.2d 16 [1st Dept. 1983]; Stern v. Aetna Cas. & Sur. Co., 159 AD2d 1013, 552 N.Y.S.2d 730 [4th Dept. 1990]; Hayes v. Henault, 131 AD2d 930, 516 N.Y.S.2d 798 [3d Dept. 1987]; Prince-Richardson on Evidence, § 6-215, supra. But see Herrmann v. General Tire & Rubber Co., 79 AD 955 435 N.Y.S.2d 14 [1st Dept. 1981]). As there is no indication in this record that Ogur actually used the documents to refresh recollection at the deposition, the request for their production should be denied.
Id. at 1123A, 851 N.Y.S.2d at 68 (citation omitted).
In Hudson Insurance Company v. Oppenheim, 72 A.D.3d 489, 899 N.Y.S.2d 29 (1st Dep’t 2010), an insurance coverage dispute, after an in camera review, Supreme Court denied plaintiff’s motion to compel discovery, concluding that the documents sought were protected by the attorney-client privilege. The First Department affirmed:
There is no basis to disturb the motion court’s ruling that the documents are subject to the attorney-client privilege. The privilege extends to communications of “one serving as an agent of their attorney or client” (Robert V. Straus Prods. v. Pollard, 289 AD2d 130, 131 734 NYS2d 170  [internal quotations marks and citations omitted]), and here, the documents were generated by defense counsel’s consultant retained to assist in handling forensic accounting in relation to the Arizona matter. Furthermore, the documents are subject to the attorney work product privilege (see CPLR 3101[c]). Such privilege extends to experts retained as consultants to assist in analyzing or preparing the case, “as adjunct to the lawyer’s strategic though processes, thus qualifying for complete exemption for disclosure” (Santariga v. McCann, 161 AD2d 320, 321,555 NYS2d 309  [internal quotations marks and citation omitted]; see Oakwood Realty Corp. v. HRH Constr. Corp., 51 AD3d 747, 749, 858 NYS2d 677 ).
Id. at 489-90, 899 N.Y.S.2d at 29 (citation omitted).
In Beach v. Touradji Capital Management, LP, 949 N.Y.S.2d 666, 668 (1st Dept. 2012), a forensic analyst retained by plaintiff Vollero testified at his deposition upon oral examination that, prior to his examination before trial, he had reviewed written reports that he had prepared relating to Vollero’s computers. A Special Referee denied defendant Touradji’s request for production of the reports and Supreme Court reviewed and concurred with the ruling.
The Appellate division reversed and “remand[ed] the matter to the motion court for an in camera inspection to determine what portions, if any, of the reports are privileged work product, as the remaining portions are discoverable[:]”
At issue in this appeal is whether reports prepared by a computer forensic analyst retained by plaintiff’s counsel in connection with a discovery demand by defendants for production of plaintiff’s computers are privileged. The motion court held that the reports are privileged and that the privilege was not waived when the analyst read his reports to refresh his recollection prior to testifying. We reverse, and remand the matter to the motion court for an in camera inspection to determine what portions, if any, of the reports are privileged attorney work product, as the remaining portions are discoverable pursuant to CPLR 3101(d)(2).
In moving to review the Referee’s ruling and obtain discovery of the forensic analyst’s report, Touradji argued that this Court’s decision in Herrmann v. General Tire & Rubber Co. (79 AD2d 955, 435 N.Y.S.2d 14 ), held that once a witness has reviewed a document to refresh his recollection for a deposition, the adverse party is entitled to it, even if it is otherwise privileged. Plaintiffs opposed the motion, arguing that although the Herrmann case seemed to direct release of the report, Herrmann is not followed by the other Departments. The motion court held that the reports are privileged and denied the motion.
The work product of an attorney is privileged, and that privilege “extends to experts retained as consultants to assist in analyzing or preparing the case…(Hudson Ins. v. v. Oppenheim, 72 AD3d 489, 899 N.Y.S.2d 29 ). However,
“that doctrine affords protection only to facts and observations disclosed by the attorney. Thus, it is the information and observations of the attorney that are conveyed to the expert which may thus be subject to trial exclusion. The work product doctrine does not operate to insulate other disclosed information from public exposure” (People v. Edney, 39 NY2d 620, 625, 350 N.E.2d 400, 385 N.Y.S.2d 23 ; see also Central Buffalo Project Corp. v. Rainbow Salads, Inc., 140 AD2d 943, 530 N.Y.S.2d 346  [the concept of attorney work product is narrowly construed and “embraces interviews, statements, memoranda, correspondence, briefs, mental impressions, and personal beliefs’ that were held, prepared or conducted by the attorney”]; Zimmerman v. Nassau Hospital, 76 AD2d 921, 922, 429 N.Y.S.2d 262  [only the information and observations disclosed by the attorney and conveyed to the expert] are subject to exclusion”]).
In this case, the reports were prepared at the request of plaintiff’s counsel in response to defendants’ demand that they be permitted to examine plaintiff’s computers. Instead of permitting defendants to conduct their own examination, plaintiff’s counsel retained a forensic analyst to ostensibly perform the same search that would have been conducted by defendants if they had been given access to the computers. The only portion of the analyst’s reports that could be attorney work product would be impressions, directions, etc., of counsel.
The court should have conducted an in camera review to ascertain whether any portion of the reports is attorney work product (see Hudson Ins. Co. v. Oppenheim, 72 AD3d 489, 899 N.Y.S.2d 29  supra [court conducted in camera review of the withheld documents before concluding that they were privileged]). The information in the reports as to how the search was conducted, what was found, what was deleted, when it was deleted, etc., is material prepared for litigation, and defendants have demonstrated a substantial need for the reports and are unable to obtain the information by any other means (CPLR 3101[d]; see Drizin v. Sprint Corp., 3 AD3d 388, 390, 771 N.Y.S.2d 82 ). Additionally, the conditional privilege that attaches to material prepared for litigation is waived when used by a witness to refresh a recollection prior to testimony (see Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 617, 462 N.Y.S.2d 16 ; compare Maisch v. Millard Fillmore Hosps., 278 AD2d 838, 718 N.Y.S2d 776 ).
To the extent that any portion of the reports prepared by the forensic analyst is attorney work product, the privilege protects the reports notwithstanding that the analyst reviewed the reports prior to his deposition (see generally Fernekes v. Catskill Regional Med. Ctr., 75 AD3d 959, 961, 906 NY.S.2d 167 ; Geffers v. Canisteo Cent. School Dist. No. 463201, 105 AD 1062, 482 N.Y.S.2d 635 ]). While Herrmann (79 AD2d 955, 435 N.Y.S.2d 14) has been cited for the contrary result, requiring production of a report on the ground that the attorney work product privilege has been waived by the witness’s review of a work product document prior to testimony (see e.g. Crawford v. Lahiri, 250 AD2d 722, 673 N.Y.S.2d 189 ), the issue in Herrmann involved a tape recording of a witness interview that had been made by an insurance company, not by or for an attorney. Thus, it was material prepared for litigation, and whatever conditional privilege attached to the tape was waived when it was used to refresh the witness’s recollection prior to testimony (see Rouse v. County of Greene, 115 AD2d 162, 495, N.Y.S.2d 496  supra, [citing Herrmann, and holding at any conditional privilege that may have attached to a diary kept of medical treatment was waived when witness used diary to refresh recollection prior to testimony]; see also Merrill Lynch Realty Commercial Servs. v. Rudin Mgt. Co., 94 AD2d 617, 462 N.Y.S.2d 16 ; supra [citing Herrmann and holding that any privilege for a chronology that had been kept was waived when used to prepare for deposition). Because an inartful reference to attorney work product in Herrmann may indicate that the ruling in Herrmann applies to a waiver of attorney work product privilege, we clarify that the attorney work product privilege is not waived when a privileged document is used to refresh the recollection of a witness prior to testimony.
Id. at 668-70 (citation omitted).
In Fields v. First Liberty Insurance Corp., 2012 NY Slip Op. 32795(U) (Sup. Ct. Suffolk Co. 2012), an action for breach of a homeowner’s insurance policy:
On June 21, 2011, the defendant produced for deposition Lance Latten, the examiner assigned to the claim and who authored the Denial Letter. Upon questioning, Latten testified that in preparation for the deposition he reviewed the claims file and the unredacted version of the claim notes, and he revealed that entries had been made after June 2010. Latten’s testimony prompted plaintiff to serve a Second Notice for Discovery and Inspection dated October 12, 2011 (the “Second Notice”), demanding production of, among other items, memoranda, business and personal files, diaries and computerized notes, “in full, without abbreviation or expurgation.” The Second Notice also demanded estimates, invoices, bills, proposals and inventories prepared by certain identified companies hired in connection with the damages sustained to the insured premises and its contents[.]
Id. at 2.
Defendant’s counsel objected, inter alia, on the ground that the documents sought constituted material prepared for litigation; the documents were not produced, and motion practice ensued. Supreme Court held a decision in abeyance pending an in camera review:
CPLR 4503(a) states that a privilege exists for confidential communications made between attorney and client in the course of professional employment, and CPLR 3101(b) vests privileged matter with absolute immunity…Nevertheless, as there is a strong public policy in favor of full disclosure, a party seeking to withhold discovery on the ground of privilege has the burden of proving each element of the privilege asserted…Thus, where a party alleges that documents sought for production and inspection are shielded from disclosure by the attorney-client privilege, the party seeking to withhold such documents has the burden of demonstrating that the information contained therein constitutes confidential communications between the attorney and the client for the purpose of securing legal services or advice…The attorney-client privilege is not lost because the documents also contain or refer to some nonlegal concerns…Materials prepared in anticipation of litigation are subject to a conditional privilege (CPLR 3101[d]). To demonstrate that this privilege is applicable, it must be shown that the material was prepared exclusively in anticipation of litigation. When such a showing is made, materials prepared in anticipation of litigation are immune from disclosure unless a party shows “substantial need” and the “inability to obtain the substantial equivalent elsewhere ‘without undue hardship’”…Whether a particular document is shielded from disclosure necessarily is a fact-specific determination that most often requires an in camera inspection…
The argument by plaintiff’s counsel in support of production of the claim notes centers on the fact that two of the defendant’s employees, Latten and his supervisor Kim Russo, admittedly reviewed the unredacted version of the claim notes in preparation for their respective deposition testimony, and thereby waived the attorney-client privilege. This argument is unavailing. A document protected by an unqualified privilege is not waived by a party merely by allowing its own employee to review the document in preparation for a deposition (see Fernekes v. Catskill Regional Med. Ctr., 75 AD3d 959, 906 NYS2d 167 [3d Dept 2010]; Geffers v. Canisteo Cent. School Dist. No. 463201, 105 AD2d 1062, 482 NYS2d 635 [4th Dept 1984]; see also US v. Kovel, 296 [2d Cir 1981]; People v. Osorio, 75 NY2d 80, 550 NYS2d 612 ; Hudson Ins. Co. v. Oppenheim, 72 AD3d 489, 899 NYS2d 29 [1st Dept 2010]). There is no dispute that Latten and Russo are employed by the defendant. Thus, if the redacted information contains confidential communication protected by the attorney-client privilege, the privilege was not waived. Id. at 3 (citation omitted).
The attorney-client privilege, on the one hand, and the “work product” privilege, on the other, are not sacrosanct. Where a witness uses an otherwise arguably privileged document to refresh his/her recollection before an examination before trial, the document so reviewed may be discoverable, when such use is disclosed at the deposition upon oral examination.
In preparing a witness for a deposition, attorneys should “beware” of the possibility that the documents reviewed beforehand may have to be produced as a result of a waiver of any privileges with respect thereto during the course of witness preparation.
Victor M. Metsch is Senior Litigation/ADR Counsel at Smith, Gambrell & Russell, LLP. He can be reached at firstname.lastname@example.org. He maintains a website at www.LegalVictor.net and can be found on Twitter @LegalVictor1.