Under Federal Rule of Evidence 612, courts concluding that "justice requires" it may order disclosure of privileged or work product protected documents that refreshed a witness's recollection before testifying. How does that rule apply to Rule 30(b)(6) witnesses, who generally have no recollection -- but instead absorb a corporation's collective knowledge before testifying as the corporation's representative?
In Adidas America, Inc. v. TRB Acquisitions LLC, Case No. 3:15-cv-2113-SI, 2017 U.S. Dist. LEXIS 193445, at *15-16, *18 (D. Or. Nov. 22, 2017), the court noted that (1) some courts "appl[y] an 'automatic' waiver under FRE 612" requiring Rule 30(b)(6) witnesses to produce every document they reviewed – an approach the court said had "some appeal," and (2) "many courts exercise discretion by applying a case-by-case balancing test." The court ultimately adopted its own standard, "a middle-ground approach between the automatic waiver rule and the balancing test." Id. at *20‑21. Among other things, the court understandably held that in a Rule 30(b)(6) setting an individual witness "is not having his or her own personal knowledge refreshed" – so it is the corporation's knowledge that is being "refreshed" under FRE 612. Id. at *21.
Each of Rule 612 and Rule 30(b)(6) is complicated on its own, but their combination creates additional subtle issues.