1The Court is aware that Judge Barbadoro stated on the

record at the conclusion of a hearing held on November 16, 2005

that “all pending motions are denied without prejudice.” After

conferring with Judge Barbadoro, he has informed me that his

ruling was not intended to include discovery motions and that I

should proceed to rule on the instant motion.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jeffrey D. Gilbert

v. Civil No. 04-cv-327-PB

Atlantic Trust Company, N.A.

d/b/a Atlantic Trust/Pell Rudman

O R D E R

Defendant Atlantic Trust, d/b/a Pell Rudman (“Atlantic

Trust”), moves to compel the production of documents that

Plaintiff Jeffrey D. Gilbert (“Gilbert”) reviewed prior to his

deposition, but refused to produce during or after his

deposition. Gilbert filed an objection.1

Background

During Gilbert’s deposition, Atlantic Trust’s counsel asked

Gilbert whether he reviewed any materials before his deposition. 

See Gilbert Dep. at 13:8-9. Gilbert answered “yes,” and stated

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that he reviewed answers to interrogatories and deposition

transcripts. Id. at 13:12-16. In response to a follow up

question of whether he had reviewed anything else, Gilbert

answered, “I reviewed some materials that my counsel and I have

discussed, notes that we’ve taken in conversations.” Id. at

13:18-20. Atlantic Trust’s counsel asked to see the notes to

which Gilbert referred. Gilbert’s counsel objected to producing

the notes citing the attorney-client and work product privileges. 

Gilbert’s counsel maintained his objection in response to

Atlantic Trust’s subsequent written request for production, which

relied upon Fed. R. Evid. 612. Gilbert’s counsel then provided

Atlantic Trust a privilege log on which he identified the

withheld notes as “Narrative of Relationship of the Gilbert

Family and Pell Rudman,” written on December 5, 2002. See Def.’s

Ex. D.

In an affidavit submitted with his objection to the motion

to compel, Gilbert asserts that he prepared the narrative to

share with attorneys whom he was considering hiring to represent

him in a lawsuit against Atlantic Trust. See Gilbert Aff. dated

November 2, 2005, ¶¶ 1, 3-4. Gilbert further asserts that the

only individuals who have reviewed the narrative are attorneys to

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whom he sent the narrative in confidence, including his present

counsel in this action. Id., ¶¶ 5-6.

Discussion

I. Whether The Withheld Documents Are Privileged

With the assent of the parties, the Court has reviewed the

withheld documents in camera. The Court is persuaded that the

narrative, written prior to the commencement of the instant

lawsuit, was prepared for use as a confidential communication to

attorneys for the purpose of facilitating the rendition of

professional legal services to Gilbert. Therefore, the Court

finds that the narrative is protected by the attorney-client

privilege. The Court further finds that Gilbert prepared the

narrative in anticipation of litigation within the meaning of

Fed. R. Civ. P. 26(b)(3). Therefore, the protection afforded to

trial preparation materials for parties and parties’

representatives under Rule 26(b)(3) also applies. Accordingly,

the Court finds that the narrative is presumptively protected

from discovery. The Court next considers whether Atlantic Trust

has demonstrated that it is entitled to the production of the

narrative under Fed. R. Evid. 612.

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II. Whether Fed. R. Evid. 612 Requires Disclosure

Rule 612 provides in pertinent part that:

if a witness uses a writing to refresh memory for the

purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its

discretion determines it is necessary in the interests

of justice,

an adverse party is entitled to have the writing

produced at the hearing, to inspect it, to crossexamine the witness thereon, and to introduce in

evidence those portions which relate to the testimony

of the witness.

Fed. R. Evid. 612. Rule 612 applies to depositions and to

deposition testimony under Fed. R. Civ. P. 30(c). See Sporck v.

Peil, 759 F.2d 312, 317 (3d Cir.), cert. denied, 474 U.S. 903

(1985); Sauer v. Burlington N. R.R. Co., 169 F.R.D. 120, 123 n.2

(D. Minn. 1996).

In his objection to the motion to compel, Gilbert argues

that disclosure of the narrative is not warranted because

Atlantic Trust failed to lay a proper foundation for the

application of Rule 612 at the deposition. The Court agrees.

The purpose of Rule 612 is “to promote the search of

credibility and memory.” Fed. R. Evid. 612 advisory committee’s

note. It is not intended to permit a “wholesale exploration of

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an opposing party’s files.” Id. Three conditions must be met in

order for an adverse party to show that it is entitled to obtain

documents used by a witness before testifying: “1) the witness

must use the writing to refresh his memory; 2) the witness must

use the writing for the purpose of testifying; and 3) the court

must determine that production is necessary in the interests of

justice.” Sporck, 759 F.2d at 317. A writing has no relevance

to any attempt to test the credibility and memory of the witness

if the witness did not use the document to refresh his memory. 

Id. Nor does it have much use for impeachment and crossexamination if it did not influence the witness’ testimony. Id. 

Here, Atlantic Trust has not demonstrated that Gilbert used

the narrative to refresh his memory for the purpose of

testifying. It is apparent from the deposition transcript that

Gilbert only testified that he had reviewed the narrative before

the deposition. That is insufficient to provide the foundation

for the application of Rule 612. See Sporck, 759 F.2d at 318

(finding that the trial court did not properly condition the

application of Rule 612 on a showing that the petitioner relied

upon the requested documents for his testimony and that those

documents impacted on his testimony); United States v. Sheffield,

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55 F.3d 341, 343 (8th Cir. 1995) (“[E]ven where a witness

reviewed a writing before or while testifying, if the witness did

not rely on the writing to refresh memory, Rule 612 confers no

rights on the adverse party.”) (citation omitted); Sauer, 169

F.R.D. at 122 n.1 (same).

Moreover, even if Atlantic Trust had laid the proper

foundation for the application of Rule 612, production of the

narrative is further conditioned on a showing that disclosure is

necessary in the interests of justice. In its motion to compel,

Atlantic Trust argues that “the nature and extent of the

communication between the parties are at the heart of this

dispute,” and that the withheld documents are “important to

Atlantic Trust in defending against the charges made in this

lawsuit.” Def.’s Mot. to Compel Production of Documents Reviewed

Prior to Jeffrey D. Gilbert’s Deposition at 3, ¶ 8. But Atlantic

Trust has full access to the persons who engaged in the 

communications with Gilbert at issue in this dispute that

Atlantic Trust now seeks to obtain from Gilbert’s narrative. 

Therefore, the Court finds that Atlantic Trust has not

demonstrated that disclosure of Gilbert’s narrative is necessary

in the interests of justice. Cf. Derderian v. Polaroid Corp.,

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121 F.R.D. 13, 17 (D. Mass. 1988) (finding that an employer in a

sex discrimination case did not demonstrate that disclosure of

the plaintiff’s notes was “necessary in the interests of justice”

where the employer had full access to its agents and/or employees

and could obtain the evidence pertaining to meetings and

communications allegedly recorded in the plaintiff’s notes).

Conclusion

 Since the Court finds that the documents that Gilbert

refused to disclose are protected by the attorney-client

privilege and by Fed. R. Civ. P. 26(b)(3), and since Atlantic

Trust has not demonstrated that Fed. R. Evid. 612 should be

applied to require disclosure of those documents, Atlantic

Trust’s motion to compel (document no. 48) is denied.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 17, 2005

cc: Michael C. Harvell, Esq.

John-Mark Turner, Esq.

Martha Van Oot, Esq.

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