Waiver of Work Product Protection in Deposition Preparation Sessions

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In Johnson v. Baltimore Police Dept., 2021 WL 1985014 (D. Md. May 18, 2021) (Boardman, J.), the Court addressed waiver of work product protection by showing documents to a third-party witness in deposition preparation.

Twice before the deposition, plaintiff’s counsel showed three documents, several photographs, and one audio file to the deponent.  The first instance was two months before the deposition.  The second was the day before the deposition.

Defense counsel asked the deponent what documents had been reviewed prior to the deposition and whether they refreshed the deponent’s recollection of events that had occurred thirty years before.  Plaintiff’s counsel asserted that counsel’s selection of documents was work product, objected, and instructed the deponent not to answer.  The Court held that the instruction was improper.

It has long been established that the selection and compilation of documents by an attorney is work product.  In re Allen, 106 F.3d 582 (4th Cir. 1997).  Generally, it is closer to fact work product than opinion work product.  Nutramax Labs., Inc. v. Twin Labs. Inc., 183 F.R.D. 466 (D. Md. 1998).

Here, however:

Unlike in In re Allen, plaintiff’s counsel selected certain documents to show Mr. Carroll, an unrepresented nonparty witness, before his deposition and actually shared the documents with him. The discussions between Mr. Carroll and plaintiff’s counsel were not privileged.

Id. at *3.  The Court wrote:

Under the facts of this case, when plaintiff’s counsel showed Mr. Carroll documents in advance of his deposition, plaintiff waived any opinion work product protection it might have had over the compilation of the documents.

Id. at *4.

Further, the deponent was being questioned about events “from 30 years ago….” Id. at *4. The Court wrote:

After a review the deposition transcript and the materials shown the deponent, I am convinced that plaintiff’s counsel shared the documents with Mr. Carroll to refresh his recollection and the documents “unavoidably enhanced his recollection of events which took place more than [30] years earlier.”

Id. at * 5.

The Court ordered that the deposition be reopened “for defense counsel to see the materials plaintiff’s counsel reviewed with [the deponent] and ask the witness about them….”