The opinion of the court was delivered by: John F. Grady, United States District Judge
After taking the depositions of two employees of defendant Advocate Health Care ("Advocate"), plaintiffs filed a motion to compel those witnesses "to produce documents and answer deposition questions." The two witnesses are Kevin Brady (Advocate's Vice President of Compensation and Benefits) and Richard Dickinson (Advocate's Director of Compensation).
Plaintiffs complain that Advocate's counsel, Michael Shakman, "improperly coached" Messrs. Brady and Dickinson "during the course of the deposition when [Shakman] became afraid that they would not follow their rehearsed scripts" and that counsel for Advocate supplied the witnesses with a copy of a law review article "containing a road map for the defense to win this very case." (Mot. to Compel at 1-3.) Plaintiffs also complain that counsel improperly objected to questions "regarding the fact of the existence of communications with their counsel" and "regarding materials used during their deposition prep sessions." (Id. at 6.)
Plaintiffs seek an order (1) compelling the witnesses "to respond to questions regarding witness preparation and the law review article"; (2) compelling the witnesses "to produce the documents sought in the subpoenas"; (3) prohibiting speaking objections and instructing Advocate's counsel "to limit his objections to the form of the question"; and (4) granting plaintiffs an additional three hours with each witness.
As counsel for Advocate points out, it does not appear that plaintiffs have fully complied with Rule 37.2's "meet and confer" requirements. Evidently, the parties were attempting to work out some of the issues raised by plaintiffs, particularly with regard to the documents sought in the subpoenas. Plaintiffs filed the instant motion before ascertaining whether there was an actual dispute over the documents and before being able to define the extent of the dispute. (Mot. to Compel, Ex. E.) The parties in this case have a history of filing extensive discovery motions -- piles and piles of paper--without fully complying with Rule 37. It also appears that a great deal of "meeting and conferring" is being conducted via e-mail and letter instead of through the more expeditious means of telephone or face-to-face conversations. The parties are (again) advised to winnow down their discovery disputes before seeking the court's intervention and to use more efficient ways of communicating with each other. That said, we will consider the merits of plaintiffs' motion, but the parties are forewarned that future discovery motions will be stricken if the court finds that the process contemplated by Rule 37 was not fully or reasonably utilized.
The principal issue raised by the motion, which involves the the intersection of the work-product doctrine*fn1 and Rule 612 of the Federal Rules of Evidence,*fn2 is whether plaintiffs are entitled to discover which documents were used by the witnesses during their deposition preparation in order to refresh their memories for the purpose of testifying. Plaintiffs principally rely on James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982), in which the court held that defendants' counsel was entitled to discover a binder of documents used to prepare plaintiff's witnesses for deposition. Advocate's position is that the documents selected by counsel to prepare the witnesses for their depositions is protected work product and that disclosure is compelled only in the interests of justice. In addition, citing Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), Advocate contends that plaintiffs first have to elicit testimony on a specific topic and then ask whether the witness reviewed any documents that refreshed his recollection on that area of questioning and influenced his testimony in order to discover the documents selected by Advocate's counsel.
We believe that Raytheon represents the better-reasoned line of cases and is most analogous to the instant case. The Raytheon court held that a binder of documents used for witness preparation constituted work product because the selection and compilation revealed important aspects of counsel's understanding of the case, but that the use of the binder to refresh the witness's memory prior to testifying constituted a waiver of the protection. 93 F.R.D. at 144-146. The court observed:
Each case must, of course, be evaluated on its own facts. In a given case the fact that the privileged documents contained attorneys' mental impressions might cause the Court to strike the balance in favor of nondisclosure. However, this is not that case. The binder at issue contains various documents selected and arranged by plaintiffs' counsel and given to various witnesses prior to their depositions. Without reviewing those binders defendants' counsel cannot know or inquire into the extent to which the witnesses' testimony has been shaded by counsel's presentation of the factual background. The instant request constitutes neither a fishing expedition into plaintiff's files nor an invasion of counsel's "zone of privacy." Plaintiff's counsel made a decision to educate their witnesses by supplying them with the binders, and the Raytheon defendants are entitled to know the content of that education.
Id. at 146. See also Nicholas J. Murlas Living Trust v. Mobil Oil Corp., No. 93 C 6956, 1995 WL 124186, at *2-3 (N.D. Ill. Mar. 20, 1995) (holding that documents that witnesses used to refresh their recollections when preparing for depositions should have been produced at the time of the depositions).
The reasoning of Raytheon applies here, particularly considering the large number of documents that Advocate has produced in this case. Accordingly, plaintiffs are entitled to discover which documents Messrs. Brady and Dickinson used to refresh their recollections when preparing for their depositions and to have those documents produced (in the event that those documents have not already been produced to plaintiffs). Plaintiffs minimize the "refreshing recollection" aspect of the issue in their briefs, but we emphasize that pursuant to the plain language of Rule 612, plaintiffs are entitled to discover only those documents that the witnesses used to refresh their memories for the purpose of testifying. Because Advocate did not produce or inform plaintiffs of all such documents prior to the depositions of Messrs. Brady and Dickinson, those depositions may be reopened for the limited purpose of cross-examining the witnesses on the documents they used to refresh their recollection. Plaintiffs have asked for an additional three hours with each witness, but three hours is unnecessary. Plaintiffs will be limited to one additional hour with each witness.
Plaintiffs' request that the court "compel the witnesses to respond to questions regarding witness preparation and the law review article" will be denied because it is far too vague. Such a broad order would not be appropriate because these types of questions implicate the attorney-client privilege. If there are specific questions that were asked at the depositions that drew an instruction from Advocate's counsel not to answer, plaintiffs should have pointed out those specific questions they believe that the deponents should be compelled to answer.
Plaintiffs also ask us to "instruct [Advocate's] counsel to limit his objections to the form of the question." We have reviewed the transcripts of the depositions of Messrs. Brady and Dickinson and conclude that Mr. Shakman, Advocate's counsel, conducted himself appropriately and that there is no need to issue any instruction. Mr. Shakman, in fact, exhibited great patience with the conduct of plaintiff's counsel, Thomas Dove. A few examples of Mr. Dove's long-winded, compound, and confusing questions are as follows:*fn3
Q: Show look at 14, you got the wrong document in mind, sir, this has nothing to do with going to colleges and all of the other silliness that was part of the 100 day program. This was a very specific system wide communication strategic plan defining the issue of nurses, position Advocate nurses supported of add broaden and define the shortage of nurses in the industry, et cetera. This has nothing to do with this reaching out and getting, you know, young nurses before they even go to nursing school. I'm talking about while you were HR vice-president at Christ here is this program coming out on Christ letterhead and involving Christ personnel to do, to create a nation--a draft strategic communication plan covering Chicago and defeat SEIU by making this an industry wide problem and look how wonderful Advocate is responding to it. Where is your response to this to say, wait a minute, Christ doesn't have this kind of problem, we have a few units? (Tr. of Dep. of Kevin Brady at 301.)
Q: What action was taken to address this question of differentials paid by race even for comparable years of experience? I mean, this is what this report breaks it down by hospital and on average across the board. And is this not a significant concern for you as the vice-president of compensation and benefits that their [sic] existed a study which demonstrated at least according to the study that you've got this various and it seems to be variably based? (Id. at 349.)
Q: If something was done on this issue a month before you took the job and Ms. Trznadl briefed you about two months, actually a month and a half because you took the job in March and she briefed you and she has her notes back from February in 200035 [sic] and the reports, you know, from Rich Dickinson and, in fact, he compliments her for compiling all this data, each Excel spread she will [sic] contains one or more summary pages which you will want to print, et cetera, then it gets into the sorted by average rate for the same key jobs and the sorted by city or suburban and then the analysis of key jobs paid by race. Okay. It's all just right up the line. I mean, it's your No. 2 guy who was complimenting Ms. Trznadl for gathering the data doing a good job. If something was done ...