Refreshing Memory With Statement Not a Waiver of Privilege

When a party to a lawsuit refreshes her memory with a privileged statement before examination for discovery, is the privileged waived?  In other words, does she now have to produce a copy of the statement to the other side? That was the question that confronted Justice Peter Hockin in Knox v. Applebaum Holdings.

In the Knox case, the property manager at Applebaum Holdings prepared a statement for her insurance company for potential litigation after the plaintiff was injured in the Applebaum parking lot.  Before her examination for discovery, the property manager reviewed the statement to refresh her memory.  The plaintiff brought a motion to compel the property manager to produce the statement. The plaintiff argued that the property manager may have given evidence that was not a true memory, but rather an account based solely on the statement.   Justice Hockin noted that previous cases had held that refreshing one’s memory to prepare for examination for discovery does not amount to a waiver of privilege.  In addition, previous cases established that so long as the witness can provide the relevant information, the other party has access to the information and the production of the statement is unnecessary.  Justice Hockin agreed with the reasoning of those cases and held that the property manager had not waived privilege.  Therefore, the statement was not producible.

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