American Small Business League v. Department of Defense

Filing 129

ORDER ON 127 DEFENDANTS' DISCOVERY LETTER DATED SEPTEMBER 24. Signed by Judge Alsup on 9/25/2019. (whalc2, COURT STAFF) (Filed on 9/25/2019)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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AMERICAN SMALL BUSINESS LEAGUE,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
UNITED STATES DEPARTMENT OF
DEFENSE and UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants.

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No. C 18-01979 WHA

ORDER ON DEFENDANTS’
DISCOVERY LETTER DATED
SEPTEMBER 24
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LOCKHEED MARTIN CORPORATION,
Intervenor.

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The Court has reviewed defendants’ discovery letter dated September 24 and plaintiff’s

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response thereto (Dkt. Nos. 127–28). Defendants request confirmation that paragraph 29 of the

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undersigned’s supplemental standing order, which states in relevant part, “[i]n preparing

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deponents, defending counsel shall segregate and retain all materials used to refresh their

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memories and shall provide them to examining counsel at the outset of the deposition,” does not

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apply to documents currently designated as exempt from disclosure under FOIA and are the

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subject of this litigation (id. at 1).

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Federal Rule of Evidence 612 provides in relevant part that “an adverse party is entitled

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to have the writing [used to refresh a witness’s recollection] produced at the hearing, to inspect

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it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to
the witness’ testimony.” As plaintiff notes, “the Court has discretion to decide whether

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[documents used to refresh recollection] should be disclosed to the opposing party’s counsel

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under Rule 612[]” (Dkt. No. 128 at 2).

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Defense counsel shall segregate and retain all documents used to refresh the witness’s

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memory but need not produce the unredacted versions to examining counsel until after further

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briefing and hearing on the motion for summary judgment on the Exemption 4 issue, and

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possibly after an in camera review of said documents used to refresh the witness’s memory,

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after which the Court may evaluate the extent to which the document(s) influenced the

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witness’s testimony during the deposition. At this stage, the Court cannot give a definitive

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answer to defendants’ inquiry beyond the foregoing.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 25, 2019.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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