This article will examine New York’s refreshing recollection doctrine in the context of trial and deposition preparation of witnesses as to the consequences of the witness’s review of privileged writings. Initially, Part II will discuss Rule 612 of the Federal Rules of Evidence. The discussion will serve as the backdrop for the analysis of the above-mentioned issues under New York law. Part III will then examine the refreshing recollection doctrine as developed and applied to testifying witnesses at a trial or deposition by the New York courts. The examination will point out the doctrine’s key rules. Part IV discusses the treatment of these key rules by the New York courts in the witness preparation situation, both pre-trial and pre-deposition, showing the shortcomings of this judicial treatment and advocating for change. Lastly, Part V makes some suggestions to the attorney in light of current New York law as to avoidance in the preparation of witnesses before they testify at a trial or a deposition of the disclosure of otherwise privileged writings.
Recommended CitationMichael J. Hutter, Review of Privileged Documents in Trial and Deposition Preparation of Witnesses in New York: When, if Ever, Will the Privilege be Lost?, 38 Pace L. Rev. 437 (2018)
Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/6