Privilege Caution When In-House Attorney Is 30(b)(6) Witness

In the Northern District of Illinois, a court ruled that a company must produce privileged documents that an in-house attorney used to refresh her memory prior to being deposed as a 30(b)(6) witness. The key here was the application of FRE 612, which says that under some circumstances a witness can be compelled to produce written material that was used as a memory refresher. What circumstances? The answer to that question is addressed in this Illinois case, Baxter Int’l, Inc. v. Becton, Dickinson & Co., which in turn invokes a three-part standard laid out in a nearly 20-year-old precedent from the Third Circuit.