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Corporate Representative Depositions: Strategies for Obtaining or Preventing Discovery of Document Compilations

Complex Interplay Between Federal Rule of Evidence 612 and Federal Rule of Civil Procedure 30(b)(6)

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Tuesday, January 16, 2024

Recorded event now available

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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.


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.



  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


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?


Biser, Sarah
Sarah B. Biser

Partner, Co-Chair Construction Law and International Arbitration Groups
Fox Rothschild

Ms. Biser represents owners, contractors, developers, architects and engineers, both in the United States and abroad,...  |  Read More

Tractenberg, Craig
Craig R. Tractenberg

Fox Rothschild

Mr. Tractenberg is a skilled international litigator who handles complex business disputes involving intellectual...  |  Read More

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