EFTA00177910 Westlaw Page 1 of 25 Page 1 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) United States District Court, D. Maryland, Baltimore Division. NUTRAMAX LABORATORIES, INC., Plaintiff, TWIN LABORATORIES INC., et. al., Defendants. No. Civ.AB-97-787. Dec. 7, 1998. In six patent infringement suits consolidated for discovery, defendants moved to compel the production of various documents used by counsel for the plaintiff to prepare a number of witnesses, including management officials of plaintiff, for their depositions. The District Court, Grimm, United States Magistrate Judge, held that: (1) documents supplied by plaintiff's counsel to prepare two management officials for deposition were subject to disclosure under evidence rule allowing discovery of documents reviewed by a witness to prepare for deposition, based on implied waiver of work product protection, and (2) supplied by plaintiff's counsel to prepare other witnesses for deposition were not subject to disclosure under evidence rule, absent proof that witnesses used documents to refresh their memory for the purpose of testifying. Motion granted in part and denied in part. ## West Headnotes ## [1] ⇌ 1381 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)3 Examination in General 170Ak1381 k. In General. Most Cited Cases (Formerly 170Ak1414.1) While instructions not to answer questions during depositions are generally improper, a witness may be instructed not to answer a question if the answer would reveal privileged information. Fed.Rules Civ.Proc.Rule 30(d)(1), 28 U.S.C.A. ## [2] $\rightleftharpoons$ 1604(2) 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(E) Discovery and Production of Documents and Other Tangible Things
Matters170AX(E)3ParticularSubject
170Ak1604 Work Product Privilege; Trial Preparation Materials 170Ak1604(2) k. Waiver. Most Cited Cases (Formerly 170Ak1600(5)) If otherwise discoverable documents, which do not contain pure expressions of legal theories, mental impressions, conclusions or opinions of counsel, are assembled by counsel, and are put to a testimonial use in the litigation, then an implied limited waiver of the work product doctrine takes place, and the documents themselves, not their broad subject matter, are discoverable. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.; Fed.Rules Evid.Rule 612, 28 U.S.C.A. [3] Federal Civil Procedure 170A 1381 170A Federal Civil Procedure © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177911 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 3 of 25 Page 3 whether the documents previously have been disclosed to the party taking the deposition; and (9) whether there are credible concerns regarding manipulation, concealment or destruction of evidence. Fed.Rules Evid.Rule 612, 28 U.S.C.A. [6] Federal Civil Procedure 170A 1381 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)3 Examination in General 170Ak1381 k. In General. Most Cited Cases 1417 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)4 Scope of Examination 170Ak1417 k. Work Product Privilege; Trial Preparation Materials. Most Cited Cases (Formerly 170Ak1415) Testimonial use of documents supplied by plaintiff's counsel to prepare witnesses for deposition resulted in a limited, implied waiver of the attorney work product doctrine; witnesses used documents to refresh their memory prior to their depositions, for the purpose of testifying, and it was necessary in the interest of justice that the documents be disclosed to the defendants. Fed.Rules Civ.Proc.Rule 26(b)(3), 28 U.S.C.A.; Fed.Rules Evid.Rule 612, 28 U.S.C.A. [7] Federal Civil Procedure 170A ## 1381 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)3 Examination in General 170Ak1381 k. In General. Most Cited Cases With respect to evidence rule allowing discovery of documents reviewed by a witness to prepare for a deposition, establishing that a witness used a writing to refresh his or her memory for the purpose of testifying may be accomplished by direct proof (an admission by the deponent that review of documents aided memory) or circumstantial proof, from which an inference may be drawn whether such assistance was received. Fed.Rules Evid.Rule 612, 28 U.S.C.A. [8] Federal Civil Procedure 170A 1381 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Deposit 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)3 Examination in General 170Ak1381 k. In General. Most Cited Cases 1417 170A Federal Civil Procedure 170AX Depositions and Discovery 170AX(C) Depositions of Parties and Others Pending Action 170AX(C)4 Scope of Examination 170Ak1417 k. Work Product Privilege; Trial Preparation Materials. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177912 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 5 of 25 Page 5 than what the defendants expected. To test the accuracy of their memories, counsel for the defendants asked whether the witnesses had reviewed any documents before their depositions to assist them in recalling the events relating to the first sale of Cosamin. Although it was acknowledged that documents had been reviewed with counsel for Nutramax during deposition preparation, the witnesses were instructed not to answer all questions designed to discover their identity. The basis *461* for the instruction not to answer was Nutramax's assertion of the work product rule. Contending that Fed.R.Evid. 612 entitles them to the production of documents used to refresh the recollection of a witness prior to a deposition, the defendants filed a motion to compel the production of the documents used to prepare the Nutramax witnesses. (Paper no. 145). Nutramax has filed an opposition and the Defendants a reply. (Paper nos. 150 and 155, respectively). The documents which are the subject of this dispute were reviewed by me in camera, and a hearing was conducted on December 4, 1998. For the reasons cited below, the motion will be granted, in part, and denied, in part. FN3. In July, 1998, the defendants deposed the following witnesses, who are the subject of this motion: Edgar J. Sharbaugh, Dr. Robert Henderson, Robert Picard, Todd Henderson, and Jeffrey Fara. FN4. While instructions not to answer questions during depositions are generally improper, a witness may be instructed not to answer a question if the answer would reveal privileged information. See Fed.R.Civ.P. 30(d)(1); Local Discovery Guideline 5(d) (D.Md.1997); Boyd University of Maryland Med. Sys., 173 F.R.D. 143, 144 (D.Md.1997). ## DISCUSSION [2] The issue presented in this case, whether Fed.R.Evid. 612 requires the production of work product materials used to prepare a witness for a deposition, but not used during the deposition itself to refresh the witnesses' recollection, is an important one. It is a rare case today which does not involve the production of documents during discovery, and these documents can be of enormous importance in questioning witnesses about events which may have occurred years earlier. Recognizing the importance of documents in conducting effective deposition discovery, counsel frequently postpone, as was done in this case, deposition discovery until document production has taken place pursuant to Fed.R.Civ.P. 34. See Lee. Flagstaff Indus., 173 F.R.D. 651, 654–56 (D.Md.1997). In preparing to defend depositions in cases where substantial document production has taken place, no competent counsel can afford to ignore reviewing with witnesses the documents which relate to critical issues. During a deposition, counsel questioning a witness will seldom fail to ask the witness about what he or she did to prepare for the deposition, and the identity of any documents reviewed for this purpose. Most often, this inquiry is not resisted by counsel defending the deposition, because the documents have already been produced to the opposing counsel. However, where, as here, many thousands of pages of documents have been produced and counsel have analyzed them and selected a population of "critical documents" relevant to case dispositive issues, a depos- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177913 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 7 of 25 Page 7 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2113 (2d ed.1994). There is contrary authority, however. See, e.g. Omaha Pub. Power Dist. v. Foster Wheeler Corp., 109 F.R.D. 615, 616–17 (D.Neb.1986) (Rule 30(c) does not incorporate Fed.R.Evid. 612, because that rule implies testimony before a judicial officer). However, because depositions are so frequently used at trial in place of live testimony, see Fed.R.Civ.P. 32; Fed.R.Evid. 804(b)(1), the better reasoned conclusion is that Rule 612 does apply at depositions. ## 1. The Work Product Doctrine In the now famous case of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), the Supreme Court recognized the work product doctrine. The doctrine creates a "protected zone" surrounding an attorney's preparation of a client's case which extends to information the attorney, or her agent, assembles in anticipation of litigation, as well as the deliberative process she uses to separate relevant from irrelevant facts, determine strategy and legal theories. Id. at 510–11, 67 S.Ct. 385. Despite its recognition of the importance of the work product doctrine for "an orderly working of our system of legal procedure," the Court acknowledged that the protection it afforded was not absolute, and could be "invaded" upon a showing of adequate reasons to justify production. Id. at 512, 67 S.Ct. 385. Fed.R.Civ.P. 26(b)(3) which, as noted above, codifies the work product doctrine, fleshes it out, and provides, relevantly: a party may obtain discovery of documents and tangible things otherwise discoverable ... and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. The Fourth Circuit has explained that this formulation of the doctrine divides work product into two categories, “fact work product,” which may be discovered upon a showing of substantial need and inability, without undue hardship, to obtain the substantial equivalent of the materials by other means, and “opinion work product” which it has characterized variously as “absolutely immune” or “nearly absolutely immune” from discovery. See In re Allen, 106 F.3d 582, 607 (4th Cir.1997) (opinion work product enjoys “nearly absolute” immunity); In Re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir.1994) (opinion work product even “more scrupulously protected” than fact work product); National Union Fire Ins. Co., Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir.1992) (opinion work product “absolutely immune” from discovery); In re Martin Marietta Corp., 856 F.2d 619, 625 (4th Cir.1988); In re John Doe, 662 F.2d 1073, 1080 (4th Cir.1981), cert. denied 455 U.S. 1000, 102 *463 S.Ct. 1632, 71 L.Ed.2d 867 (1982) (opinion © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177914 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 12 of 25 Page 12 guage of Fed.R.Civ.P. 26(b)(3) suggests especial protection for opinion work product. Martin Marietta, 856 F.2d at 626 (internal citations omitted). In sum, a careful reading of Martin Marietta permits the conclusion that if testimonial use has been made of work product information, a limited, non-subject matter implied waiver has occurred as to the materials put to that use, provided the disclosure of those materials would not reveal "core" opinion work product, namely pure expressions of attorney mental impressions, opinions or legal theory. The final Fourth Circuit opinion which must be considered with respect to the work product doctrine is *In re Allen*, 106 F.3d 582 (4th Cir.1997). In *Allen*, the Fourth Circuit, in a lengthy opinion, addressed whether information covered by the attorney client privilege and the work product doctrine was subject to discovery in a civil case. The most significant part of this case, for purposes of the present dispute, came at the very end of *466* the opinion, when the court considered whether an attorney's selection and collection of certain records of her client, which were themselves discoverable, constituted work product. The court stated: Yet, just as Allen prepared the interview notes and summaries in anticipation of litigation, she also chose and arranged these records in anticipation of litigation. This choice and arrangement constitutes opinion work product because Allen's selection and compilation of these particular documents reveals her thought processes and theories regarding this litigation. Allen, 106 F.3d at 608. It is noteworthy that, although Allen did not address the issue presented in this case, it did cite as authority for its conclusion that documents selected and compiled by counsel constitute opinion work product two cases which addressed the very issue raised in this case, the applicability of Fed.R.Evid. 612 to depositions. More tellingly, the Allen court did not cite Martin Marietta, which contains the most detailed discussion by the Fourth Circuit of the distinction between fact and opinion work product. FN12. The First Circuit has considered the issue of whether an attorney's selection of certain documents from a larger population of discoverable documents is opinion work product, and, therefore, shielded from disclosure, even if used to prepare witnesses for depositions. In an opinion which is critical of the reasoning used in Sporck, one of the cases relied on in Allen, the First Circuit concluded "[the reasoning used in Sporck], we suggest, is flawed because it assumes that the relevatory nature of the sought-after information is, in itself, sufficient to cloak the information with the heightened protection of opinion work product. That is simply not the case; much depends on whether the fruits of the screening would soon be revealed in any event." Inre San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1018, (1st Cir.1988). FN13. These cases are: James Julian Raytheon Co., 93 F.R.D. 138 (D.Del.1982) and Sporck Peil, 759 F.2d 312 (3d Cir.1985). In neither case did the court hold that © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin 9/26/2011 EFTA00177915 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 10 of 25 Page 10 way that the attorney client privilege can. Whether the information involved is fact, as opposed to opinion, work product also affects how easily it can be waived. In Martin Marietta, the Fourth Circuit explained in considerable detail the rationale underlying the distinction between fact and opinion work product, and the reason why the latter is entitled to such expansive protection. Because of the importance of the Martin Marietta opinion to the resolution of the issue presented in this dispute, it merits discussion at more length. In Martin Marietta, a former employee of that company was charged with mail fraud in connection with a government contract with the Department of Defense ("DOD"). Martin Marietta, 856 F.2d at 620. To assist in his defense, he sought to compel production of correspondence and notes from Martin Marietta relating to an administrative settlement agreement between that company and the DOD involving events which were the subject of the charges against the employee. Id. at 622. The employee sought the records to make out a defense that he was being made a scapegoat. Id. The records included the results of an internal audit, interview notes, transcripts, electronic recordings and correspondence relevant to the settlement agreement. Id. The company resisted the disclosure of the documents, asserting the attorney client and work product privileges. Id. The district court ordered the production of certain of the requested documents, but not others. On appeal, the Fourth Circuit addressed the issue of whether the production of work product materials to the DOD and U.S. Attorney's office during the negotiation of the administrative settlement agreement constituted an “implied waiver” of this privilege. Id. at 622-26. The court began its analysis with a consideration of the Supreme Court's decision in Nobles, noting that that decision held that an attempt to make testimonial use of work product resulted in an implied waiver of the privilege. *Id.* at 624. The Fourth Circuit then considered whether the scope of this waiver constituted broad subject matter waiver, or a more narrow waiver, applicable only to the work product materials actually produced. Citing *Duplan Corp.* *Deering Milliken, Inc.*, 540 F.2d 1215 (4th Cir.1976), the court stated that *Nobles* established a rule that non-opinion work product put to a testimonial use resulted in subject matter waiver of those materials, and that, accordingly, Martin Marietta had impliedly waived its work product protection for the non-opinion work product matter disclosed to the government. *Id.* at 625. In so doing, the court conceded that even if the production was limited to non-opinion work product, this information "necessarily will be reflective of a counsel's approach," but added "a distinction can be made between non-opinion work product, which may nevertheless be ordered produced if counsel has waived work product protection, and pure mental impressions severable from the underlying data and arguably not subject to subject matter waiver." *Id.* This distinction is of vital importance to the present case, for it illustrates the essential difference between non-opinion and opinion work product. The court recognized that "the line between opinion and non-opinion work product can be a fine one." *Id.* at 626. However, it emphasized that the essence of what the *465* work product doctrine is intended to protect is "pure expressions of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177916 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 13 of 25 Page 13 the work product doctrine absolutely shielded documents selected and compiled by an attorney from disclosure if Fed.R.Evid. 612 was otherwise applicable. Indeed, in Julian, the court ordered the production of the notebook of records selected and compiled by counsel. See Julian, 93 F.R.D. at 146. In Sporck, the court did not order disclosure of such documents, not because it concluded they were absolutely immune from discovery, but instead, because it concluded that the party seeking disclosure of these documents had failed to lay a proper foundation to trigger application of Evidence Rule 612. See Sporck, 759 F.2d at 317–18. At first blush, reading Allen and Martin Marietta together could lead to the conclusion that if documents otherwise discoverable in litigation are selected and compiled by an attorney in anticipation of litigation, they constitute opinion work product and, therefore, are protected from disclosure, even if put to a testimonial use, because of the court's ruling in Martin Marietta that testimonial use of work product information only results in implied waiver of non-opinion work product. However, to reach such a result would exalt form over substance for several important reasons. First, as stated in Martin Marietta, the dividing line between fact and opinion work product is not always easily discernable, see Martin Marietta, 856 F.2d at 626, and the mere selection of otherwise discoverable documents by counsel falls closer to fact work product on the continuum than it does to core opinion work product. Second, the disclosure of even “pure” fact work product will necessarily disclose information about an attorney's approach to the litigation of the case, so it is never possible to completely insulate an attorney's thought process from discovery when any form of work product is disclosed. *See id.* at 625. Third, what the work product doctrine is fundamentally designed to protect against is disclosure of "pure" mental impressions or opinions of counsel. *See id.* Disclosure of opinion work product consisting of records of a party to the litigation which are themselves subject to discovery, and which do not contain "pure" expressions of counsel's mental impressions or theories, does not do violence to the policy underlying the work product doctrine, particularly if those documents already have been put to a testimonial use by the party whose attorney selected and compiled them. Fourth, neither Martin Marietta, Allen, nor any other Fourth Circuit opinion, has addressed the exact question presented in this case, and therefore, did not have to reconcile the conflict which exists between the important policies which underlie the work product doctrine*467 and Evidence Rule 612. And, finally, neither the Martin Marietta nor the Allen court held that the protection afforded to opinion work product was absolute. *See Martin Marietta*, 856 F.2d at 625–26; *Allen*, 106 F.3d at 607 ("opinion work product 'enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances'"). FN14 FN14. In Berkey Photo, Inc. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y.1977), one of the first, and most often cited, cases to address the issue presented here, the court was faced with reconciling decisions, such as Martin Marietta and Allen, which held that opinion work product was entitled to a nearly “absolute immunity from © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177917 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 15 of 25 Page 15 has been noted that the legislative history of Rule 612 is somewhat ambiguous, because the rule itself is silent with respect to whether it applies to work product materials used to refresh recollection. See James Julian, 93 F.R.D. at 145, Bank Hapoalim, 1994 WL 119575, at *5. It does appear, however, as though the House Committee on the Judiciary did not intend the rule to operate in such a way that it would allow a "fishing expedition" into the documents a witness may have referred to in preparing for trial, nor did that committee intend for it to bar "the assertion of a privilege with respect to writings used by a witness to refresh his memory." H.Rep. No. 650, 93rd Cong., 1st Sess. (1973), reprinted in 1974 U.S.C.C.A.N. 7075, 7086. Because of the apparent conflict between Evidence Rule 612 and the work product doctrine, as codified in Fed.R.Civ.P. 26(b)(3), *468 courts have looked for various ways to harmonize the two rules. See Joint Eastern and Southern Dist. Asbestos Litig., 119 F.R.D. 4 at 5, Redvanly . NYNEX Corp., 152 F.R.D. 460, 470 (S.D.N.Y.1993). The process has produced inconsistent results, with some courts concluding that work product materials which were reviewed by a witness prior to being deposed were subject to disclosure under Rule 612, $^{FN16}$ and others concluding that they were not.$^{FN17}$ FN16. See, e.g. Wheeling–Pittsburgh Steel Underwriters Labs., Inc., 81 F.R.D. 8(N.D.Ill.1978); James Julian Raytheon Co., 93 F.R.D. 138(D.Del.1982); Omaha Public Power Dist. Foster Wheeler Corp., 109F.R.D. 615 (D.Neb.1986); Joint Eastern and Southern Dist. Asbestos-Litig., 119 F.R.D. 4 (E.&S.D.N.Y.1988); Redvanly NYNEX Corp., 152 F.R.D. 460 (S.D.N.Y.1993); Bank Hapoalim American Home Assurance Co., No. 92 CV 3561, 1994 WI 119575 (S.D.N.Y.1994); Ehrlich Howe, 848 F.Supp. 482 (S.D.N.Y.1994); Audiotext Communications Network, Inc. U.S. Telecom, Inc., 164 F.R.D. 250 (D.Kan.1996). FN17. See, e.g. Sporck. Peil, 759 F.2d 312 (3d Cir.1985); Berkey Photo. Eastman Kodak Co., 74 F.R.D. 613, (S.D.N.Y.1977); Derderian. Polaroid Corp., 121 F.R.D. 13 (D.Mass.1988); Baker. CNA Insurance, 123 F.R.D. 322 (D.Mont.1988); Timm. Mead Corp., No. 91 CV 5648, 1992 WL 32280 (N.D.Ill.1992), Butler Mfg. Co. Inc. Americold Corp., 148 F.R.D. 275 (D.Kan.1993); Arkwright Mut. Ins. Co. National Union Fire Ins. Co., No. 90 CV 7811, 1994 WL 510043 (S.D.N.Y.1994). [3] As a threshold matter, three foundational elements must be met before Rule 612 is applicable with respect to documents reviewed by a witness to prepare for a deposition: (1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing. Fed.R.Evid. 612; see Sporck. Peil, 759 F.2d 312-317 (3d Cir.1985); Butler Mfg. Co., Inc. Americold Corp., 148 F.R.D. 275, 278 (D.Kan.1993); 4 Jack B. Weinstein and Margaret A. Berger, Weinstein's Federal Evidence § 612.07[1] (2d ed.1997). The first element insures that the writing is relevant to an attempt to test the © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177918 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 17 of 25 Page 17 Fed.R.Evid. 602. Others, however, are not so restricted. Expert witnesses, for example, may base their opinions on information supplied by others, if reliable. Fed.R.Evid. 703. Similarly, Fed.R.Civ.P. 30(b)(6) allows a party to designate a witness to testify on its behalf with respect to specified subjects. The testimony of such witnesses also is not limited to matters within their personal knowledge, but extends to “matters known or reasonably available to” the party designating the witness. Rule 30(b)(6). There is a greater need to know what materials were reviewed by expert and designee witnesses in preparation for deposition since the substance of their testimony may be based on sources beyond personal knowledge.$^{FN19}$ (2) The nature of the issue in dispute. Whether a witness is testifying generally about the transactions which are the subject of the litigation, or more precisely about a subset of facts which relate to a case dispositive issue (such as a statute of limitations defense, or, as in this case, the on sale bar defense) may affect the need to know what materials were reviewed to prepare for deposition. (3) When the events took place. Whether the events about which the witness will testify took place recently, or years ago, affects the need to know what materials were reviewed. The ability of a witness to perceive, remember, and relate events is fair game for cross examination, and a deposing attorney has a legitimate need to know whether the witness is testifying from present memory, unaided by any review of extrinsic information, present memory “refreshed” by reference to other materials, or really has no present memory at all, and can only “testify” as to what is memorialized in writings prepared by the witness or others. The greater the passage of time since the events about which the witness will testify, the more likely that the witness needed to refresh his or her recollection to prepare for testimony. (4) When the documents were reviewed. As noted, Fed.R.Evid. 612 only applies to use of documents to refresh recollection for purposes of providing testimony. Thus, review of documents for purposes other than deposition or trial testimony is exempt from the rule. In complex cases, or cases involving many documents, counsel may have many occasions to review with clients documents which relate to the issues in the litigation, such as preparation of pleadings or motions, responding to Fed.R.Civ.P. 34 document production requests, and development of case strategy. Such review is not for purposes of providing testimony. Accordingly, if a witness reviewed documents months before a deposition, for a purpose other than to prepare to testify, disclosure of the documents reviewed should not be required in response to a Rule 612 demand. The nearer the review of documents to the date of the deposition may affect whether the court concludes that the purpose was to prepare for testimony. (5) The number of documents reviewed. Whether a witness reviewed hundreds of documents, as opposed to a few critical ones, *470* may affect the decision whether to order the disclosure of work product materials in response to a Rule 612 demand. If an attorney has culled through thousands of documents to identify a population of several hundred which are most relevant to the litigation, and the witness reviews these documents to prepare for the deposition, a court may be less inclined to order the production of such work product than if the witness reviewed a single document, or very few documents, selected by the attorney which relate to a critical issue in the case. $^{FN2D}$ (6) Whether the witness prepared the document(s) reviewed. If the witness prepared the document(s) reviewed in preparation for the de- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177919 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 19 of 25 Page 19 ## 3. Analysis Five witnesses are implicated by the pending motion: Edgar J. Sharbaugh, Dr. Robert Henderson, Robert Picard, Todd Henderson, and Jeffrey Fara. (Defendants motion to compel, Paper no. 145, at 2–7). Sharbaugh is co-owner of Nutramax, and vice-president of marketing. He was deposed as a designee of Nutramax, pursuant to Fed.R.Civ.P. 30(b)(6) regarding a number of subjects, including the creation, retention and destruction of documents, the existence of records regarding purchase and sales transactions of the plaintiff, as well as product identification and sales information of the company between 1991 and 1993. *Id.* at 2–3. Dr. Henderson is a co-owner and the president of Nutramax. He is the inventor of the two patents which are the subject of this litigation, and was *471* deposed as a rule 30(b)(6) designee regarding the first combination of ingredients of Cosamin, the subject of the patents, as well as the first purchase dates of the ingredients for Cosamin, and its first sale and use. *Id.* at 3. Picard is a shipping clerk for the plaintiff, and apparently was not deposed as a designee witness. *Id.* at 4. Todd Henderson, Dr. Henderson's son, is a co-owner of Nutramax, and a vice-president, in charge of its veterinary science division. He signed the plaintiff's interrogatory answers, and testified as a fact witness, not as a Rule 30(b)(6) designee. *Id.* The final witness, Jeffrey Fara, is a longstanding friend of Dr. Henderson, who assertedly purchased Cosamin on March 27, 1992, just days before the critical date of March 31, 1992. *Id.* at 6–7. Excerpts from the depositions of Sharbaugh, Dr. Henderson, and Picard were provided as attachments to the plaintiff's motion. None were provided with respect to Todd Henderson and Jeffrey Fara. Pursuant to my order dated October 22, 1998, (Paper no. 158), the plaintiffs provided me with a notebook containing the documents used to prepare the foregoing witnesses for their depositions. I reviewed these documents in camera. They remain under seal, and the defendants have not seen them. The notebook contains 41 documents. Plaintiffs further provided a helpful chart listing the documents used to prepare each of the witnesses. Eleven were used to prepare Sharbaugh, 32 to prepare Dr. Henderson, five for Picard, two for Todd Henderson, and nine for Fara. With the exception of document no. 23, for which the attorney client privilege was asserted, plaintiffs state that all of the documents contained in the notebook have been produced to the defendants during discovery. $ ^{FN23} $ (Paper no. 150, at p. 7). FN23. During the hearing held on December 4, 1998, counsel for the defendants acknowledged that the defendants do, at present, have all of the disputed documents, except no. 23, but asserted that some of these documents, relating to Dr. Bucci, a non-party witness, were not provided to the defendants until after the Sharbaugh and Dr. Henderson depositions. Because I am ordering the production of the documents used to prepare both of these witnesses, (except for document no. 23), as well as the limited reopening of their depositions, it is not necessary for me to separately consider the significance of the fact that some of the “Bucci documents” were not produced until after Dr. Henderson's deposition. However, to the extent that documents were produced by the defendants after Dr. Henderson's deposition which © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177920 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 21 of 25 Page 21 accordingly, demonstrated the first two elements of Rule 612, and, concomitantly, for purposes of work product doctrine analysis, that the documents selected by plaintiff's attorneys for him to review were used by Sharbaugh for a testimonial purpose. Whether they must be disclosed, as demanded by the defendants, turns on the third element of Rule 612, the balancing test, and an evaluation of the factors identified above. Sharbaugh was a Rule 30(b)(6) designee, and therefore his testimony was not limited to facts personally known to him, but also to those reasonably available to the plaintiff. Fed.R.Civ.P. 30(b)(6). Because of this, the defendants had a heightened need to discover the factual basis for his testimony. This was underscored by the fact that he testified as to issues which are potentially case determinative, and events which took place more than five years ago. Sharbaugh's ability to perceive, remember and relate these events, which are highly relevant to his credibility, are legitimate areas for inquiry by the defendants, particularly in light of his direct involvement in the destruction of documents in 1994 and 1998. FN25. From the limited information provided to me, I am unable to draw any conclusions about whether the destruction of documents was innocent, as plaintiff asserts, or sinister, as the defendants contend. See supra note 24. Sharbaugh only reviewed eleven documents, some selected by him, and others by plaintiff's attorneys,$$^{FN26}$$ and all of them are apparently now in the defendants' possession. In other circumstances, this factor would militate against disclosure. However, given the fact that thousands, perhaps hundreds of thousands, of documents have been produced for inspection during discovery, it would be difficult for the defendants to easily determine a population of documents which likely would be relevant to Sharbaugh's testimony. From my review of the documents in camera, it is clear that none contain "pure" opinion attorney work product, such as discussion of case strategy, litigation theories or mental impressions. Finally, as noted above, there is no dispute that documents have been destroyed, both before and after the commencement of this litigation, which relate to important issues in the case. Sharbaugh is at the center of the dispute regarding these documents, and much will hinge on his credibility. While the outcome of this controversy cannot now be predicted, it is undeniably significant. In light of all of these circumstances, I conclude that use of the documents selected by counsel to prepare Sharbaugh for his deposition constituted a testimonial use of these documents which resulted in a limited, implied waiver of the attorney work product doctrine as to them. I further find that the first two elements of Rule 612 have been met as to him, and that, having considered the balancing factors discussed above, it is necessary in the interest of justice for the eleven documents used to prepare Sharbaugh be produced to the defendants. FN26. Assuming those eleven documents had been selected by Sharbaugh, with plaintiff's attorneys taking no part in that selection, such a situation would not implicate the work product doctrine, and therefore, disclosure would be warranted based solely on Fed.R.Evid. 612. FN27. Plaintiff also asserted the attorney client privilege as an inde- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 EFTA00177921 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 23 of 25 Page 23 the inventor of this product and, presumably, a significant actor in the events surrounding the first use and sale, is of great importance, his testimony as a designee required him to provide information based on information reasonably available to the plaintiff. Fed.R.Civ.P. 30(b)(6). Dr. Henderson admitted that it was possible that the first use and sale of Cosamin occurred before March 31, 1992, and that he “flat out” did not know if it was offered for sale before that date. In such circumstances, the ability to have questioned him in more detail about the events of that time using documents prepared in the ordinary course of business was of unquestionable importance to defendants. Combined with the fact that the overwhelming majority of the plaintiff's own records relating to that time apparently have been destroyed by Nutramax, the defendant's need for access to the documents which Dr. Henderson reviewed for purposes of testing his memory cannot be understated. It is all too easy for a witness to testify that his recollection is vague, as did Dr. Henderson, and to give the appearance of candor by acknowledging the possibility of the occurrence of an important event, all the while maintaining that it cannot be conceded that it actually did. Rigorous cross examination is needed to test such self-serving statements by focused, analytical questioning, using contemporaneously prepared documents, if available, to test the witness's assertions. Without the use of such documents, or others which might have assisted if they had not been destroyed by the plaintiff, the defendants were at a clear *474 disadvantage. Additionally, from my review of the documents in camera, it is clear that none contain “pure” opinion attorney work product, such as discussion of case strategy, litigation theories or mental impressions. Therefore, the first four, seventh and ninth factors overwhelmingly militate in favor of disclosure. The remaining factors are either neutral, or do not sufficiently undermine the argument for disclosure to change the outcome of the analysis. With the exception of document 23, which clearly is exempt from disclosure under the attorney client privilege, none of the documents reviewed by Dr. Henderson contain "pure" opinion work product. Accordingly, I conclude that with respect to the 32 documents used to prepare Dr. Henderson for his deposition, all except no. 23 are discoverable. Having been put to a testimonial use, a limited, implied waiver of work product immunity has occurred, and the first two elements of Rule 612 have been met. The third element of that rule, the balancing of factors, also strongly supports disclosure of these documents in the interests of justice. [8] Robert Picard testified, apparently as a fact witness, and not a rule 30(b)(6) designee. He admitted meeting with counsel for the plaintiff within weeks of his deposition to prepare for it, and reviewing documents, although the details regarding this review were not disclosed because counsel for Nutramax instructed him not to answer these questions. When asked whether his review of the documents refreshed his recollection with respect to the events surrounding them, he stated that it did not. (Paper No. 145, Ex. E at 89–93, 159–60, Picard deposition, July 29, 1998). Having read the five documents which Picard did review, it is understandable why he denied that they assisted in his recollection of the events surrounding the first sale of Cosamin. Accordingly, I conclude that the first element of Rule 612 has not been established, making the documents not subject to discovery. Nevertheless, were I to © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 9/26/2011 EFTA00177922 https://web2.westlaw.com/print/printstream.aspx?rs=WLW11.07&pbc=BC6E23F9&destin... 9/26/2011 © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. ## END OF DOCUMENT D.Md.,1998. Nutramax Laboratories, Inc. Twin Laboratories Inc. 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 In conclusion, the eleven documents reviewed by Sharbaugh, and the documents reviewed by Dr. Henderson, except for no. 23, shall be disclosed. The motion to compel as to Picard, Todd Henderson and Fara is denied. Plaintiffs will make the ordered disclosures within 14 days of this order. In addition, I will permit a limited reopening of the depositions of Sharbaugh and Dr. Henderson to permit defendants to examine them further regarding their use of the documents I have ordered disclosed, and to further test their memories in light of these documents. Counsel will, within 14 days of this order, contact my chambers to schedule a telephone conference call to discuss the limits of these depositions. ## CONCLUSION ments used to prepare the deposition witnesses who are the subject of this dispute, or the identification of the documents used to prepare each of those witnesses. Page 25 183 F.R.D. 458, 51 Fed. R. Evid. Serv. 35 (Cite as: 183 F.R.D. 458) Page 25 of 25