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Campbell v. Pennsylvania School Boards Association

United States District Court, E.D. Pennsylvania

July 17, 2018

SIMON CAMPBELL, and PENNSYLVANIANS FOR UNION REFORM, Plaintiffs,
v.
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.

          MEMORANDUM

          DUBOIS, JUDGE

         I. INTRODUCTION

         Plaintiffs 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 plaintiffs' request.

         II. BACKGROUND

         On June 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.

         Plaintiffs' 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).

         On June 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.

         III. LEGAL STANDARD

         Rule 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.

         IV. DISCUSSION

         A. Review of Documents with Respect to Timeline

         Plaintiffs 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 317.

         In 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.

         Further, 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 ...


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