What Do You Know? Discovering Document Compilations in 30(b)(6) Depositions
March 31, 2019 | 94 Wash. L. Rev. 481
Abstract: The work product doctrine emerged as a judicially created, practical solution to resolve problems inherent in the Federal Rules of Civil Procedure (FRCP). While the FRCP famously sought to broaden discovery and increase parties’ access to information, the rules infamously failed to prevent attorneys from discovering each other’s work product. For policy reasons—primarily to keep some semblance of the adversarial system—the U.S. Supreme Court created work product qualified immunity to prevent attorneys from discovering their opponents’ work, mental impressions, and legal strategies.
At the end of the twentieth century, courts significantly extended the work product doctrine when they began to recognize document compilations—the groups of documents attorneys use to prepare their witnesses for depositions—as privileged work product. These courts found that attorneys’ document selection and organization processes necessarily reveal their mental impressions about cases and are therefore shielded by the work product doctrine. This relatively new work product designation has led to a flood of litigation and prevented deposing attorneys from successfully examining their witnesses. More specifically, deposing attorneys cannot effectively test witness memory or credibility when the attorney does not know which documents the witness reviewed.
Nowhere is this problem more apparent, or more problematic, than in the realm of 30(b)(6) depositions. FRCP 30(b)(6) governs the depositions of corporations. It requires corporations to choose a corporate designee who will bind the company as a whole through his or her testimony. Because corporate designees are frequently required to testify about vast amounts of information relating to the corporation, they almost always review document compilations to prepare for their depositions. In fact, their knowledge may be entirely secondhand, stemming completely from the documents reviewed rather than their own personal experiences. When parties shield these preparatory documents under the work product doctrine, they prevent the deposing attorney from learning the basis of the witness’s testimony. This puts the examiner at a unique disadvantage. This Comment addresses the issue of document compilations in the context of 30(b)(6) depositions. It argues that 30(b)(6) document compilations are not work product at all.
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