The Problem: Navigating Redaction Demands
Your legal team just prepared a witness using redacted board minutes. Now, opposing counsel demands the full, unredacted versions for deposition. Should you produce them?
Most eDiscovery specialists would say yes, citing the general prohibition against relevancy redactions. However, a recent Rhode Island district court decision in Corkery v. Coinstar, LLC establishes a narrow exception: when you prepare a witness with redacted documents under Federal Rule of Evidence 612(b), you're only obligated to produce what the witness actually reviewed.
This distinction is crucial because witness preparation materials occupy a unique procedural space. They're not standard discovery responses governed by FRCP Rule 26 or Rule 34. Rule 612(b) creates a different obligation: provide the writing used to refresh the witness's memory. The court found no authority requiring production of an unredacted version when the witness never saw one.
Understanding this distinction protects your team from two risks: over-producing sensitive material unnecessarily and under-producing in ways that trigger sanctions. The Coinstar case involved approximately 2,000 pages of redacted board meeting minutes out of 2,600 total pages. The volume alone shows why getting this protocol right matters.
What You Need Before Starting
Before implementing this approach, ensure you have:
Legal Foundation: Confirm your jurisdiction follows Federal Rules of Evidence. Rule 612(b) states "an adverse party is entitled to have the writing" used to refresh a witness's memory. The Coinstar court interpreted "the writing" to mean the document in the form reviewed, not an unredacted version.
Documentation Infrastructure: You'll need a system that tracks:
- Which documents were provided to which witnesses
- In what form (redacted or unredacted)
- When the review occurred
- Who applied redactions and under what rationale
Redaction Rationale: Unlike privilege redactions, relevancy redactions remain controversial. Magistrate Judge Katherine H. Parker's decision in Kaiser Aluminum Warrick v. U.S Magnesium represents a minority view permitting relevancy redactions "in some cases," but she required parties to "seek the leave of the opposing party or the Court before redacting any future documents." Don't assume your jurisdiction follows this approach.
Clear Distinction from Standard Discovery: This protocol applies only to documents produced voluntarily under Rule 612(b) because they were used in witness preparation. It doesn't apply to documents requested through interrogatories, document requests, or subpoenas.
Step-by-Step Implementation
Step 1: Decide Redaction Scope Before Witness Prep
Before handing materials to your witness, determine what needs redaction. Don't redact during or after witness review. The Coinstar witness "reviewed the documents in redacted form while preparing for the deposition." This sequence matters. If your witness sees unredacted versions, you've lost the Rule 612(b) protection.
Document your redaction rationale. While Coinstar didn't require a privilege log because "nothing before the Court indicate[d] that any of those redactions were for privilege," you're still making litigation decisions that may need defense later.
Step 2: Maintain Version Control
Create a witness-prep document set that's separate from your main document repository. Label it clearly: "Witness Prep Materials - [Witness Name] - [Date]." Use a naming convention that distinguishes these from responsive documents in your standard production.
If you're using a document review platform, tag these materials with a specific designation. Consider: WITNESS_PREP_612 or similar. This prevents accidental production of unredacted versions from other workflows.
Step 3: Produce Proactively Under Rule 612(b)
Coinstar produced the redacted board minutes "not in response to a discovery request but rather voluntarily out of fairness under Federal Rule of Evidence 612(b)." This proactive approach demonstrates good faith and frames the production correctly from the start.
In your production letter, cite Rule 612(b) explicitly. State: "Pursuant to Federal Rule of Evidence 612(b), we're producing the documents used to prepare [Witness Name] for deposition testimony. These documents are produced in the form reviewed by the witness."
Step 4: Respond to Privilege Log Demands
If opposing counsel demands a privilege log for your redactions, your response depends on your redaction basis. The Coinstar court noted "there is nothing before the Court to indicate that any of those redactions were for privilege." If you're redacting for relevance, not privilege, no log is required.
However, if you've mixed privilege redactions with relevancy redactions, you're in murkier territory. Better practice: use separate redaction codes (black boxes for privilege, white boxes for relevance, for example) and provide a log for privilege redactions only.
Validation: How to Verify It Works
Test 1: Chain of Custody Audit
Pull your witness prep file. Can you demonstrate:
- The witness received only redacted versions?
- No unredacted versions were accessible during prep?
- The production matches exactly what the witness reviewed?
If you can't prove this chain, your Rule 612(b) argument weakens.
Test 2: Cross-Reference with Standard Production
Check whether unredacted versions of the same documents were produced through other discovery channels. If you produced unredacted board minutes in response to a document request, then produced redacted versions under Rule 612(b), you've created an inconsistency that opposing counsel will exploit.
Test 3: Jurisdictional Alignment
Research how your jurisdiction handles relevancy redactions generally. If you're in a jurisdiction that strictly prohibits them (like many federal courts), your Rule 612(b) argument faces steeper scrutiny. The Coinstar approach works best in jurisdictions that haven't taken a hard line against all relevancy redactions.
Maintenance: Ongoing Tasks
Update Your ESI Protocol Template: Add a section addressing Rule 612(b) productions. Specify that witness preparation materials may be produced in redacted form if that's how the witness reviewed them. This prevents disputes before they start.
Train Legal Hold Custodians: When you issue a Records Freeze for litigation, instruct custodians to preserve both redacted and unredacted versions of documents used in witness prep. You need both to prove the witness saw only the redacted version.
Monitor Case Law: The Coinstar decision is recent and fact-specific. Watch for appellate review or distinguishing decisions in your jurisdiction. Subscribe to eDiscovery case law services that flag Rule 612 developments.
Document Every Witness Prep Session: Create a contemporaneous record noting which documents the witness reviewed and in what form. A simple memo to the file after each prep session creates evidence you'll need if challenged.
Revisit After Major Depositions: After each deposition using this protocol, conduct a quick post-mortem. Did opposing counsel challenge the redactions? Did the court accept your Rule 612(b) framing? Adjust your approach based on what you learn.
This protocol won't eliminate all redaction disputes, but it gives you a defensible position when preparing witnesses with sensitive materials. The key is consistency: if you're going to rely on Rule 612(b), apply it systematically, document thoroughly, and produce proactively.
