United States District Court, E.D. Pennsylvania
SIMON CAMPBELL, and PENNSYLVANIANS FOR UNION REFORM, Plaintiffs,
PENNSYLVANIA SCHOOL BOARDS ASSOCIATION, MICHAEL FACCINETTO, DAVID HUTCHINSON, OTTO W. VOIT, III, KATHY SWOPE, LAWRENCE FEINBERG, ERIC WOLFGANG, DANIEL O'KEEFE, DARRYL SCHAFER, THOMAS KEREK, and LYNN FOLTZ, in their individual capacities, Defendants.
seek the production of certain documents reviewed by
defendant Michael Faccinetto, president of the Governing
Board (“Board”) of defendant Pennsylvania School
Boards Association (“PSBA”), in preparation for
his deposition on May 30, 2018, pursuant to Federal Rule of
Evidence 612. All of the documents are on defendants'
privilege log. Defendants object to the production of
documents on the ground that plaintiffs have failed to meet
the requirements for production of documents under Rule 612.
For the reasons stated below, the Court denies
19, 2018, the Court issued a Memorandum and Order in this
case denying defendants' Motion to Dismiss. The facts of
the case are set forth in that Memorandum.
position with respect to the production of documents is based
on two series of questions during Faccinetto's deposition
in which he was asked by plaintiffs, in essence, to identify
the documents he reviewed in preparation for the deposition.
During the deposition, counsel for plaintiffs asked
Faccinetto, “What did you do to prepare for today's
deposition?” Faccinetto Dep. Tr. 47:13-14. Faccinetto
replied that he had reviewed documents he had access to
“on [his] computer” to “get the timeline
straight, ” including emails between the Board and its
counsel. Id. 47:22-23; 48:7-49:14. Later in the
deposition, counsel asked Faccinetto if he reviewed various
items on defendants' privilege log, including emails and
legal opinions from PSBA's counsel. Dep. Tr. 57:1-61:8.
Faccinetto again replied that he had. Id. Plaintiffs
now argue that, under Federal Rule of Evidence 612,
Faccinetto's review of those documents waived any
applicable privilege, and defendants must produce the
documents. Defendants argue that production is not required
because plaintiffs failed to establish that Faccinetto relied
on the documents in giving his testimony under the Third
Circuit decision Sporck v. Peil, 759 F.2d 312, 318
(3d Cir. 1985).
26, 2018, the Court conducted a telephone conference with
counsel to address the deposition dispute. During the
telephone conference, the Court directed defendants to
provide the Court with the twenty-one documents plaintiffs
seek to be produced pursuant to Rule 612 for in
camera review. Defendant provided those documents on
July 3, 2018. The documents are Entries 140, 285, 316, 320,
328, 375-79, 383, 389, 392-94, 398-400, 403, 408, and 421 in
defendants' Privilege Log dated June 14, 2018, which
defendants provided to the Court. The parties also provided
the Court with a jointly annotated transcript of
Faccinetto's deposition. Based on that record, and for
the reasons stated below, the Court denies plaintiffs'
request for the production of documents pursuant to Rule 612.
612 provides that when a witness “uses a writing to
refresh memory” at a hearing, the “adverse party
is entitled to have the writing produced.” Fed.R.Evid.
612(a). When a witness uses the writing to refresh his memory
“before testifying, ” the documents must be
produced “if the court decides that justice
requires.” Id. However, before obtaining
documents reviewed by a witness prior to testifying, Rule 612
“requires that a party meet three conditions”:
“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 v. Peil, 759 F.2d 312, 317 (3d Cir. 1985).
Rule 612 does not apply where counsel merely “seek[s]
identification of all documents reviewed by” a
deponent. Id. at 318. To the contrary, Rule 612 is
applicable and requires production only where that
identification of documents “result[s] from opposing
counsel's own selection of relevant areas of questioning,
and from the witness' subsequent admission that his
answers to those specific areas of questioning were informed
by documents he had reviewed.” Id.
Review of Documents with Respect to Timeline
argue primarily that the twenty-one documents they request
must be produced because Faccinetto reviewed them to
“get the timeline straight, ” Dep. Tr. 48:9-10,
and substantial portions of the deposition expressly
addressed the timeline of events. The Court rejects
plaintiffs' argument because they have failed to show
that Faccinetto used the documents “for the purpose of
testifying” on that issue. Sporck, 759 F.2d at
order to establish that a deponent used a document for the
purpose of testifying, a party must show that “that the
document actually influenced the witness'
testimony.” Sporck, 759 F.2d at 318.
Plaintiffs have failed to do so. Throughout the deposition,
Faccinetto repeatedly stated that he did not recall the
timeline. E.g., Dep. Tr. 40:2-6, 41:3-6, 63:2-14,
96:12-16, 105:24-106:3, 124:7-129:6. For example, when
plaintiffs asked Faccinetto when the Board first discussed
plaintiffs' requests under Pennsylvania's Right to
Know Law, he responded that he could not recall an exact
date. Id. 40:2-6, 40:23-41:12, 42:2-4. Similarly,
when asked when he viewed certain videos produced by
plaintiffs regarding the PSBA, Facccinetto replied, “I
couldn't tell you dates. Just because I have a video or
two that sticks in my head, but [sic] I couldn't tell you
when or a specific time.” Id. 96:12-16.
Although Faccinetto admitted to reviewing documents “to
get the timeline straight, ” id. 48:9-10,
those documents did not “actually influence”
his testimony to the extent he was unable to recall the
timeline of events.
to the extent that Faccinetto did testify regarding
the timeline of events, plaintiffs have failed to establish
on the record that Faccinetto's testimony was based on
the documents they request. The Third Circuit requires that
the production of documents under Rule 612 “should only
result from opposing counsel's own selection of relevant
areas of questioning, and from the witness' subsequent
admission that his answers to those specific areas of
questioning were informed by documents he had
reviewed.” Sporck, 759 F.2d at 318. The record
in this case does not establish that Faccinetto's answers
were informed by the documents he reviewed. Instead, the
record establishes that Faccinetto's testimony with
respect to the timeline was based on documents provided by
plaintiffs as ...