Using Documents in Client Deposition Preparation: What to Know
In today’s episode, we are going to focus on documents in deposition preparation, focusing on clients, not experts. This is an important but highly ignored topic, mainly because as lawyers, we have easy privileges and we don’t get any pushback. However, there may be situations where it’s a really close call.
No matter where you are in terms of knowledge on this topic or even experience, this is a good refresher because we’re looking at situations and cases that are involving volumes of documents. Think about a business dispute, a personal injury case, or lots of medical records. Think about an employment case where there’s a huge volume of employment files to go through.
Traditionally, when we’re getting ready for deposition prep, we’re going to use documents to help refresh the client’s memory. Generally speaking, several months or even years can lapse in these lawsuits before the deposition comes around. We want to specifically show pages to the client because we know that they’re going to be scrutinized over what’s in the documents. And so, we want to review them because document questions can be tricky.
In this episode, you will hear:
- The importance of reviewing documents for deposition preparation
- The role of the lawyer-client privilege
- The communication piece of the lawyer-client privilege
- The work product piece of the lawyer-client privilege
- Determining whether it’s worth the fight
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Supporting Resources:
For Texas lawyers:
Lawyer-Client Privilege Texas Rule of Evidence 503
Work Product Privilege Texas Rule of Civil Procedure 192.5
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Episode Transcript:
Elizabeth Larrick: Hello and welcome to a new episode of trial lawyer prep with me, your host, Elizabeth Larrick.
Thank you so much for joining this podcast. It’s dedicated to you trial lawyer, who’s looking to better prepare your case and have better trials. Today’s episode, we are going to focus on [00:01:00] documents in deposition preparation. what to know. And next episode, we will look at how to decide what documents to use and deposition prep.
Let me be clear. We are really going to focus in on clients. So we are not talking about experts, different set of rules altogether. So again, we’re really only talking about our clients An important but highly ignored topic, mainly because I think as lawyers, we have two really easy privileges. We can just throw out there and most of the time we don’t get any pushback and it’s a blanket that can cover the, any situation we’ve got.
We generally just move on. However, There may be situations where it’s a really close call. And so this episode is going to walk through a little bit of the privileges and have friendly reminder for some [00:02:00] folks and maybe just a quick education for others. Either way, just appreciate you joining. And no matter where you are on knowledge on this topic, I think it’s a good refresher because every client needs to look at some document before their deposition.
Even if that only document they look at is the notice to tell them where to show up and what time to be there. But really we’re looking at, you know, situations and cases that are involving volumes of documents. Think about a business dispute. Think about a personal injury case with lots of medical records, or think about employment case where there’s volumes of employment files to go through.
And traditionally, when we’re getting ready for deposition prep, we’re going to use documents to help refresh the client’s memory, right? Because. And generally speaking, several [00:03:00] months, sometimes even years lapses in these lawsuits before the deposition comes around. Or we want to specifically show pages to the client because we know that they’re going to be scrutinized over what’s in the documents.
And so we want them to review them. I also think it’s helpful because document questions can be tricky. It’s easy to lure the witness, the client, into argument or defense mode when there’s something in black and white, whether it may be a mistake or a lack of, right, an omission. It can sometimes force a person into a precarious position, which we want to avoid altogether.
And as a lawyer, our job is to decipher what to use in deposition prep, which we’re going to cover in the next episode, because we know they’re going to be asking us questions. that question, what did you review in preparation for your deposition? And [00:04:00] like I’ve already talked about, most of the time, these documents are things that are already in discovery.
So there’s no panic and there’s only a few scenarios that I can think of and I’ve been through one of these scenarios where kind of panic can set in. And one of those scenarios may be you’ve not seen the notes or the documents the client’s referring to when they say, yes, I looked at these notes or, oh yeah, I had this journal that I looked at and you don’t know what it is.
So not having seen the notes or documents that can cause panic. Usually depending on the type of case you have and the type of co counsel, there’s a chance you haven’t produced the notes, the documents the client refers to in their deposition, but you should have already done it. And again, this can set in panic if you’ve got particularly anxious co counsel or a very strict judge on discovery, or if you’re violating a discovery order altogether.
That can cause some panic. [00:05:00] And another scenario would be if you had shown the client some documents, maybe it’s a undisclosed expert opinion or some timelines or an animation that you’re working on behind the scenes, and then they tell the defense lawyer about it in that opening question, that can cause a little bit of panic.
And then occasionally, which is the scenario that’s happened to me, where there are notes that were created in deposition prep by the client, and they start talking about reviewing those to prepare for deposition. And again, in that situation, I just blurted out, no, don’t answer that question. We’re not producing that privilege.
And I actually had. The attorney sent a letter and we had a call about it. She’s trying to get me to produce these notes that were created in Deposition Prep and I just said, well, I don’t agree with you. If you feel so strongly that you need them, then, you know, let’s go [00:06:00] talk to the judge, do motion to compel.
And of course she didn’t, she didn’t need them. And also something we had created together. In any of these scenarios, I just demonstrated the reaction would be to assert privilege. And again, sometimes you’ve seen things, sometimes you haven’t, sometimes you really didn’t want the client to be talking about them.
And if it’s just, you know, a set of documents or notes that hasn’t been produced and is discoverable. You may or may not cause panic to you and you just produce them and there’s no real worry about privilege. And so what I want to talk about are the two main privileges that we generally think of that would actually cover this part, which would be attorney client privilege, which is really aimed at communication.
And researching this, of course, in me being in Texas, I went and looked up the Texas rules. And so it is called lawyer client privilege and it’s in the Texas rules of evidence 503. And this is a privilege that’s. held by the client, right? So the client has to assert it and refuse to disclose or prevent another [00:07:00] person from disclosing confidential communication, right?
So that’s the key part of the lawyer client privileges, this communication piece, right? And then the other privilege being work product. And that being more about the mental processes of the attorney, analyze, prepare a case, and the cool thing about the work product privilege in my mind, that is, is it covers materials prepared, mental impressions, develop communications and anticipation of litigation or for trial.
And sorry, for the work product, we’re looking at the.
I’ll put both of these in the show notes, if you’re curious, you may not be, because we just talked about them, but what is really cool, I will say a little bit about the Texas rules, in particular on both these privileges, is they are really broad and That’s cool because it’s not broad in other places.
And so we think about really broad. So particularly let’s talk about the lawyer client [00:08:00] privilege in that particular role, it lays out all the people that this covers. So we’ve got lawyer, we’ve got a lawyer, somebody in their office. Right. Anybody who works for the lawyer. We’ve got the client. We’ve even got clients representative, right?
So somebody who is affiliated with them in even sometimes even agents, right? So that’s really broad, right? I mean, you know, want to make sure that, Hey, if you’re even going to go consult with a lawyer, right? Those communications are confidential. And that’s great. I think the key there would be communication.
And then for the work product, again, this just really, really broad. We’ve got the attorney, client representatives, rule itself goes really far. So we’ve got party, we’ve got litigants, we’ve got consultants, sureties, indemniters, insurers, employees, or agents. That’s really, really broad, which is great. I mean, it’s [00:09:00] not great if you’re trying to get some things, but again, this is really supposed to intend to cover, right?
When you’re preparing for litigation or for trial and communication is also thrown into work products, but it’s not the same all over. So when I did a little quick review and when I say that, I mean, I, Google that for some time to see what was out there. There’s definitely locations that limit things.
And specifically one of the cases that I came across that came out in 2020 was basically a particular deponent had. been sent medical records from his lawyer to review. And then he’d taken notes while he was reviewing them. And of course, when asked that’s one of the questions they ask, Hey, did you make any notes?
He’s like, yeah, where are they? They’re not here. And it’s like, oh, well I want them. It’s like, well, and so of course this all goes up and down, you know, courts, yes, courts, no. And ultimately they decided that They were not protected by [00:10:00] privilege because they weren’t ever communicated to the attorney, right?
So this particular witness had just taken their own notes and never actually showed the notes to the lawyer, right? So they said, Nope, you got to fork those things over. And another place, is that basically representatives and insurers and consultants are not always covered by attorney client privilege, for sure.
I know that sometimes people, you got to be really careful about that. If you are going to be doing that type of work to make sure, hey, you got to have the lawyer there to make sure it’s all covered. And occasionally having that third person there can then break it. So you got to be really careful there as well.
We, you know, what we’re really aiming at for deposition preparation with the worry here is that there are notes that have been created somewhere, or there are undisclosed expert opinions or timelines or animations that they may not be [00:11:00] discoverable or you weren’t ready, right, to put them out there. You just don’t want to necessarily reveal things.
Too early, and I think that’s the purpose, right, of the work product privilege altogether. So very short review of those two particular privileges. But I know that at the end of the day, like is it worth the fight if it’s some handwritten notes that are on there? And maybe it is, maybe it isn’t. That’s one of the things that in looking through this particular topic on listservs with other lawyers, and that’s generally what most people say is yes.
You can throw it out there, but depending on who you’re facing, is it worth the fight? If you’ve got a defense counselor or opposing counselor who is tooth and nail gonna go for it, they’re bilinearly, they don’t really care and they use that particular issue to make you look bad in front of the judge.
Yeah, you might not want to do that. I imagine they just give it over or bargain with it. There’s something that you want, bargain with either way, and I think that we [00:12:00] sometimes gloss over this particular topic because we don’t use a lot of documents with our clients for preparation, or sometimes we use so many, they just get in there, let’s go, I just, I looked at everything.
Then it, that becomes a long part of the deposition because they’re slowly going through everything. So we’ll kind of talk about the next episode, how to decide what to review with them or what to give with them. Because I do think that there’s a way to do it properly, to do your job, right? It’s one of the things we’ve got to do is get them ready for those documents that they’re going to see, but also to say it in a way that we’re not necessarily being unethical by saying, Oh, well, you know.
Well, I’ll just tell him you can’t answer that question. So just for a quick review, right? We’ve got two particular privileges that we can use in these scenarios where we may or may not know what’s on these notes or things, which would be attorney client privilege, which is again, the client’s privilege, right?
Not the attorney’s, not the lawyers or work product. And again, here in Texas, very, [00:13:00] And I think that the, in the event you get crossways with somebody, they actually have to, it’s on their burden of them to prove there’s no other place they can get this information. All right. Well, thank you so much for tuning in.
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