A recent Northern District of Illinois case illustrates privilege issues that arise when a corporate party designates an in-house attorney to testify as a Rule 30(b)(6) deposition witness. In Baxter International, Inc. v. Becton, Dickinson and Co., 2019 WL 6258490 (N.D. Ill. Nov. 22, 2019), Magistrate Judge Sidney I. Schenkier ordered the defendant to produce documents that an in-house attorney reviewed before testifying as a 30(b)(6) witness. During her 30(b)(6) deposition, the witness testified that to prepare for the deposition, she reviewed certain documents that refreshed her recollection. The plaintiff then sought production of those documents, which the defendant withheld on the basis of attorney-client privilege.
Noting that the "Seventh Circuit has not adopted a specific test governing when a witness’s use of documents to prepare for a deposition warrants disclosure of such documents," the court followed the language of Federal Rule of Evidence 612 and the three-part test set forth in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985). Applying the test, the court concluded that each of three inquiries were satisfied.
First, the witness used the documents to refresh her memory. The court noted that the defendant’s counsel "voluntarily decided to have [the witness] review certain privileged documents," which were not required in order for the witness to testify about non-privileged matters within the scope of the 30(b)(6) topics.
Second, the witness used the documents for the purpose of testifying. The court explained that the witness’s testimony was "affected and informed by her review" of the documents, as demonstrated by her substantive testimony about the documents and their subject matter. Moreover, it was reasonable to infer that the documents influenced her testimony; and defense counsel’s choice to have the witness review the documents "reflects an intent to have the documents influence [the witness’s] deposition testimony."
Third, justice required the defendant to produce the documents reviewed by the witness. Without access to the documents, the plaintiff is unable to know whether the witness "ignored or misinterpreted certain information contained within these documents, and [the plaintiff] should have the opportunity to test and challenge her testimony with these documents in hand." Accordingly, the court granted the plaintiff’s motion to compel the production of the documents.