The refreshing recollection doctrine, a common law rule of evidence in New York, permits a witness to use while testifying at trial a writing when the witness has difficulty in recalling facts to attempt to stimulate the witness’ recollection, and thereafter testify to the fact(s) thereby recollected.1 If reference to the writing actually does refresh the witness’ memory, the examination may proceed with the witness testifying from present recollection.2 Opposing counsel then has the right to inspect the writing, and use it in examining the witness for the purpose of protecting against the introduction of “false, forged or manufactured evidence.”3 All of this is well established in New York evidence law.
Three recent Appellate Division decisionsBeach v. Touradji Capital Mgt., 99 A.D.3d 167 (1st Dept. 2012); Seaberg v. North Shore Lincoln-Mercury, 85 A.D.3d 1148 (2d Dept. 2011); and Fernekes v. Catskill Regional Med. Ctr., 75 A.D.3d 959 (3d Dept. 2010)discussed this doctrine in the context of deciding whether the doctrine applies to sound recordings sought to be used at trial, and, if so, what adjustments to its basic foundation elements are necessary; whether the doctrine applies when a witness uses a writing in preparation for deposition; and whether the use of a privileged document, e.g., a document protected by a statutory privilege such as the attorney-client privilege, attorney work product privilege pursuant to CPLR 3101(c), or material prepared for litigation privilege pursuant to CPLR 3101(d), used by a witness to refresh recollection prior to a deposition effects a waiver of the privilege. This column will address these and other related issues raised by the decisions.
‘Seaberg’ Decision
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