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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Tuesday, January 16, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss strategies, such as how to avoid or compel disclosure of documents a witness reviewed before testifying and the competing duties to protect privilege and prepare the witness. The program will review the complex interplay between Federal Rule of Civil Procedure 30(b)(6) and Federal Rule of Evidence 612. The panel will also address whether the use of AI in compiling documents makes a difference.

Faculty

Sarah B. Biser
Partner, Co-Chair Construction Law and International Arbitration Groups
Fox Rothschild LLP

Ms. Biser represents owners, contractors, developers, architects and engineers, both in the United States and abroad, in all stages of the construction process. She focuses her practice on large, capital-intensive construction projects, with a particular emphasis on drafting and negotiating contracts for complex and unique construction and infrastructure, as well as litigating disputes both in the courtroom and in domestic and international arbitration. Ms. Biser is a frequent lecturer on construction issues. She has served as an adjunct professor, teaching a course on high-growth corporate transactions, in Cornell Law School’s Technology Law LL.M. program.

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Craig R. Tractenberg
Partner
Fox Rothschild LLP

Mr. Tractenberg is a skilled international litigator who handles complex business disputes involving intellectual property, licenses, business torts and insolvency issues. He regularly structures new franchise programs, many of which are international. Mr. Tractenberg also defends and enforces franchise agreements. He has also served as special counsel to franchise companies.

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Description

Lawyers gather, compile, and show documents to their clients to prepare them to testify in a deposition or at trial, often seeking to identify specific documents believed important to opposing counsel. In the 30(b)(6) context, a corporate designee often has no personal knowledge of facts about which he must testify. Counsel may actually have an affirmative duty to educate the witness about facts only the attorney knows. Counsel also have an affirmative duty to confer prior to the deposition.

Impeachment or testing of the deponent's knowledge (or alleged lack of knowledge) and credibility are near impossible without access to the source of the knowledge, i.e., the documents reviewed. Thus, "What documents did you review to prepare for your deposition?" is among the most common deposition questions.

The answer may be permissible or privileged and turns on a thorough understanding of the attorney work-product doctrine and the evidentiary rules about documents used to refresh a witness' memory under Federal Rule of Evidence 612. Asking the right questions can increase the likelihood of disclosure.

Listen as this experienced panel of preeminent litigators discusses what attorneys must understand about the interplay between deposition preparation and FRE 612.

Outline

  1. Role of document review in deposition preparation
  2. Tension between cross-examination and review of document compilations
    1. Deposing counsel's perspective
    2. Deponent's perspective
    3. Court perspective
  3. Strategies for obtaining or preventing discovery of document compilations

Benefits

The panel will address these key issues:

  • Strategies for meet and confer obligations.
  • What is the difference between having recollection refreshed and having documents "affect and inform testimony"?
  • Are compilations created by AI "work product"?
  • Is the premise that opposing counsel can reverse-engineer strategy by seeing complied documents really valid?
  • What questioning techniques may assist with discovery of compiled or reviewed documents?