Case 1:18-md-02824-WJ Document 837 Filed 09/21/20 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`IN RE: GOLD KING MINE RELEASE
`IN SAN JUAN COUNTY, COLORADO
`ON AUGUST 5, 2015
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`This Document Relates to All Cases
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`No. 1:18-md-02824-WJ
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`ORDER DENYING NAVAJO NATION AND STATE OF NEW MEXICO’S REQUEST
`FOR PRODUCTION OF NOTES MADE BY RULE 30(b)(6) WITNESS HAYDUK
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`This matter comes before the Special Master on the request by Sovereign Plaintiffs’
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`Navajo Nation and the State of New Mexico for notes made by a Mining Defendant Rule 30(b)(6)
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`witness, Nicholas Hayduk. Hayduk was designated as a Rule 30(b)(6) witness by Mining
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`Defendants Kinross Gold U.S.A. and Kinross Gold Corp ( Kinross Defendants). Twice during
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`Hayduk’s two day deposition, the Sovereign Plaintiffs requested that the Kinross Defendants
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`produce the notes mentioned by Hayduk during his deposition. The Kinross Defendants refused.
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`Despite an exchange of emails and further discussion, the parties were unable to resolve their
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`dispute. The parties then brought this dispute to the attention of the Special Master at the July 31,
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`2020 telephonic status conference. The Special Master directed the parties to submit letter briefs,
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`with exhibits, by August 17, 2020, which they did.
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`The Kinross Defendants argue that they are not required to produce the notes because
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`Federal Rule of Evidence 612(a)(1) and (2) does not apply and that the notes are protected by the
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`attorney-client privilege. The Sovereign Plaintiffs argue that Rule 612 does apply and that in any
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`event, the notes should be produced in the interest of justice so that Sovereign Plaintiffs can
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`effectively cross-examine this Rule 30(b)(6) witness. Having reviewed the letter briefs, the
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`attached exhibits, and the legal authorities cited in the letter briefs, the Special Master finds that
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`Hayduk’s notes do not need to be produced under Fed. R. Evid. 612 because the evidentiary rule
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`does not apply to this situation.
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`The rough transcript of Hayduk’s deposition establishes that:
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`1) He kept a notebook where he kept “scribble notes” as he reviewed, online, the hundreds
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`of documents that had been sent to him by his attorneys prior to his deposition. Tr.,
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`Vol I, 7-21-2-, pp. 18-20;
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`2) He made the notes for three purposes –
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`a. To keep track of the time he spent reviewing the documents and to keep track
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`of the documents he had reviewed thus far, Tr., Vol I, 7-21-2-, pp. 18-20;
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`b. To make “an observation if it struck me on a document just as a memory
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`trigger”, Tr., Vol I, 7-21-2-, pp. 18-20;
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`c. To remind him to discuss “a number of those notes with Brad and Jules [his
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`attorneys] at the meetings that I mentioned that occurred throughout the time
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`leading up to the deposition.” Tr., Vol II, 7-22-2-, pp. 1-2;
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`3) He reviewed the notes prior to his deposition – “I performed a quick read through
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`them.” Tr., Vol II, 7-22-2-, pp. 1-2.1
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`1 Hayduk was not asked and did not volunteer when he reviewed the notes in relation to when his deposition was
`taken.
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`2
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`4) He did not refer to or use the notes during his testimony on either day of his two-day
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`deposition.
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`Federal Rule of Evidence 612 governs the adverse party’s options when a witness uses a
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`writing to refresh his or her memory.
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`(a) Scope. This rule gives an adverse party certain options when a witness uses a writing
`to refresh memory:
`1) while testifying; or
`2) before testifying; if the court decides that justice requires the adverse party to
`have those options.
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`Those options include allowing the adverse party to have the writing produced at the hearing in
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`order for the adverse party to inspect it, to cross-examine the witness about the writing, and to
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`introduce any portion of the writing that relates to the witness’s testimony.
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`The transcript establishes that the Rule 30(b)(6) witness did not use the notes while he
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`testified. Therefore, Rule 612(a)(1) does not apply. The issue then becomes whether Rule
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`612(a)(2) applies. If it does not, the inquiry stops, and the notes do not need to be produced.
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`The majority of the cases that have addressed Rule 612(a)(2) involve fact patterns that are
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`quite dissimilar to the present fact patterns. For example, in one of the leading cases involving
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`Fed. Evid. Rule 612, Sporck v. Peil, 759 F. 2d 312 (3rd Cir. 1985), the writings that were at issue
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`were the documents selected by the attorneys to inform and educate the Rule 30(b)(6) witness in
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`a securities fraud class action lawsuit. The case has been criticized because the appellate court
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`held that “the selection process of defense counsel in grouping certain documents together out of
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`the thousands produced in this litigation is work product entitled to protection under Federal Rule
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`of Civil Procedure 26(b)(3).” Id., at 315. See, e.g., Northern Natural Gas v. Approximately
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`9117.53 Acres, 289 F.R.D. 644 (D. Kan. 1993) (compiling cases discussing and disagreeing with
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`Sporck.) Nevertheless, the second ruling in Sporck that the appellate judges reached is instructive
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`in this matter.
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`Rule 612 requires that a party meet three conditions before it may obtain documents
`used by a witness prior to testifying: 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.
`Fed. R. Evid. 612. The first requirement is consistent with the purposes of the rule,
`for if the witness is not using the document to refresh his memory, that document
`has no relevance to any attempt to test the credibility and memory of the witness.
`Sporck, supra, at 317.
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`The Sovereign Plaintiffs have been unable to establish that the Rule 30(b)(6) witness used the
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`notes he took to refresh his memory or that the notes were used for the purpose of testifying. As
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`the court noted in Sporck, “the second requirement recognizes that the document is of little utility
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`for impeachment and cross-examination without a showing that the document actually influenced
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`the witness’ testimony.” Id., at 318. Without this foundation, the writings that are the subject of
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`this request are not subject to Fed. R. Evid. 612.2
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`Sovereign Plaintiffs argue that Hayduk testified that he took his notes in preparation for his
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`deposition and that the reasonable inference is that he relied on the notes in his testimony.
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`However, the Rule does not apply if he used the writing to prepare for his deposition; the Rule
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`only applies if he used the notes to refresh his memory and if his notes were used for the purpose
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`of testifying, For example, in Abu Dhabi Commercial Bank. v. Morgan Stanley & Co., 2011 WL
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`50224221 (S.D.N.Y.), the Special Master determined that the Rule 30(b)(6) witness relied on his
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`written answers to the twenty-nine topics he was to address and that they had sufficient impact on
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`2 Although Hayduk testified that he “performed a quick read through” of the notes at some time before his
`deposition, that fact is “insufficient to provide the foundation for the application of Rule 612”. Gilbert v. Atlantic
`Trust Company, N.A., 2005 WL 8176938, *2 (D. N.H. 2005).
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`his testimony to make Rule 612 applicable. In that case, the witness indicated that he wrote out
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`his answers after he discussed certain topics with another corporate representative because the
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`Rule 30(b)(6) witness did not have any personal knowledge of certain corporate actions about
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`which he had to testify. In that case, the strong inference was that because he had no personal
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`knowledge, the Rule 30(b)(6) witness had to rely on his notes for the purpose of testifying.
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`The Rule 30(b)(6) witness Hayduk did not testify that the notes he took and reviewed prior
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`to his deposition either refreshed his memory or that he used his notes for the purpose of testifying.
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`The Sovereign Plaintiffs did not lay out a foundation that enables the Special Master to find either
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`of these requirements for the application of Rule 612, unlike the case of Audiotext Communications
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`Network, Inc. v. US Telecom, Inc., 164 F.R.D. 250 (D. Kan. 1996), where the witness looked
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`through some documents the night before his last session of his deposition. That witness later
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`testified that he was “astonished” by things he had failed to remember in earlier sessions of his
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`deposition. In fact, the review so influenced his later testimony that he wanted to clarify or change
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`his prior testimony. Id., at 254. That type of testimony establishes that the review of documents
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`both refreshed the witness’ memory and that the documents were used for the purpose of testifying.
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`Another case that involved the application of Rule 612 is Hiskett v. Walmart Stores, Inc.,
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`180 F.R.D. 403 (D. Kan. 1998), where the witness reviewed a statement during a break in her
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`deposition that she had written much earlier. After the break, she not only remembered when she
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`wrote the statement but also that her attorney had asked her to write the statement. That testimony
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`not only established that the review of the writing had refreshed her memory but that the witness
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`used the statement for the purpose of testifying. Finding that Fed. R. Evid. 612 applied, the court
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`ordered the statement to be produced to the adverse party.
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`Sovereign Plainti節e have been unable to produce any testinony or other evidence that the
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`notes refroshed Hayduk,s memory or that he used his notes for the pu呼ose oftestifying. Lacking
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`such a foundation,血e Special Master finds that Fed・ R. Evid・ 612 does not apply to仇e notes
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`Hayduk made prior to his deposition・ Since Rule 612 does not apply, the Sovereign Plain艦:,
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`request that Kimoss Defendants produce血e notes is denied・3
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`IT IS SO ORDERED.
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`THE PARTIES ARE NOTIFIED THAT WITHIN 21 DAYS OF SERVICE of a copy ofthe
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`order, rePOrt, or reCOmmenda缶ons,瓜ey may別e Ⅵ誼en obiections with the Clerk of the Court
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`pursuant to Federal Rule of Civil Procedure 53(f)(2). A party must file any objection with the
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`Clerk of thc Cout w抽in the twenty-One-day period if that party wants the District Judge to hear
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`也eir objections. If no objections are触ed within the twenty-One-day period, the Dis宙ct Judge
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`may adopt the order, rePOrt, Or reCOmmendations in whole. If any party wants their letter brief
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`and/or the docume斑s in question filed with the Court under seal, they must notify the Special
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`Master within 21 days.
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`3 sjnce the Special Master has determined that Rule 612 does not apply there is no need to discuss whether the
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`Hayduk notes are protected by the attomey-Client priv血ege.
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