In Wells Fargo Bank, N.A. v. RLJ Lodging Trust, No. 13-cv-00758 (N.D. Ill. Aug. 4, 2014), the district court held that review of privileged information during deposition preparation did not waive privilege where the review did not appear to have influenced the deponent’s testimony. The document at issue was a report prepared by the deponent, Greenholtz, an employee of plaintiff. Plaintiff had produced the report to defendant with one sentence redacted on privilege grounds. Greenholtz reviewed the un-redacted report in preparation for his deposition and he testified at his deposition that his review of a number of documents, including the report, “somewhat” refreshed his recollection. Defendant sought production of an unredacted version of the report on the grounds that the sentence was not privileged and, even if it were, Federal Rule of Evidence 612 allowed defendants to discover the document, because it refreshed Greenholtz’s memory. The court rejected both arguments. First, the sentence was properly characterized as privileged because it reflected legal advice that Greenholtz had received from the company’s lawyers and he was communicating that advice to company employees who would need to be aware of the advice. Second, Rule 612 gives the court discretion to order production of a writing used by a witness to refresh his or her memory before testifying if the court determines that “justice requires” the adverse party to have the document for the purpose of more effectively examining the witness or deponent. The court explained that, although there are differing approaches to Rule 612, the better reasoned cases employ the “functional approach” to determining whether “justice requires” disclosure. Relevant factors include whether it can reasonably be said that review of the document influenced the witness’s testimony, that the production of the material would resolve a credibility issue, or that the production is necessary for fair cross-examination. Having reviewed the unredacted report in camera, the court found that there was nothing inconsistent with Greenholtz’s testimony. In addition, there was no indication that review of the privileged information influenced Greenholtz’s testimony.