In nearly every situation, courts understandably refuse to allow litigants to use any privileged communications at trial that they withheld from discovery. Is there any situation in which litigants can avoid such a common-sense prohibition on "sandbagging" the adversary?
In Russell v. CSK Auto, Inc., FMLA plaintiff Russell sought to prevent defendant O'Reilly from ever using at trial a statement by an O'Reilly district manager that included "'the circumstances that led to [plaintiff's] reduction of pay' and a 'reply to his allegations that it was because he was on FMLA.'" Civ. Case No. 14-14230, 2017 U.S. Dist. LEXIS 68806 (E.D. Mich. May 5, 2017) (internal citation omitted). During discovery, defendant had withheld the statement as privileged and as work product. The court rejected the plaintiff's motion – noting that defendant "does not intend to introduce the statement as substantive evidence," and "does not intend to make their [sic] case based on the privilege [sic] document." Id. at *3, *4. Instead, defendant explained that it might use the statement to "refresh the [district manager's] memory" or perhaps use it to impeach the district manager if his "testimony conflicts with his privileged statement." Id. at *3.
This scenario does not often arise, but most courts seem to allow litigants to use as impeachment material even documents they successfully withheld from discovery.