The Challenge
Coinstar faced a procedural dilemma many eDiscovery teams hope to avoid: complying with Federal Rule of Evidence 612(b) without exposing privileged or irrelevant material from board meeting minutes. The company produced about 2,000 pages of redacted board minutes to plaintiff Michael Corkery, not because they were responsive to a discovery request, but because a witness had reviewed them while preparing for deposition testimony.
Corkery filed an emergency motion demanding unredacted versions and a privilege log. The question before Rhode Island Magistrate Judge Amy E. Moses in Corkery v. Coinstar, LLC was straightforward but consequential: when you produce documents under Rule 612(b) because a witness used them to prepare, must you produce the full, unredacted version or only what the witness actually saw?
The Environment and Constraints
Rule 612(b) creates an unusual production obligation. Unlike standard discovery requests governed by FRCP 26 and 34, Rule 612(b) triggers when a witness uses a writing to refresh their memory before testifying. The opposing party gets access to that writing. The rule exists to prevent coaching and ensure cross-examination can test the witness's preparation.
Coinstar's constraint was that their witness had reviewed the board minutes in redacted form. The company had already removed material deemed irrelevant to the litigation before the witness saw the pages. This wasn't a case of redacting for privilege after the fact; the witness preparation itself happened with the redacted version.
Corkery's team faced their own constraint. They couldn't point to specific privilege claims because Coinstar wasn't asserting privilege. The company's position was simple: "We gave you what the witness saw. Rule 612(b) doesn't require more."
Most courts disfavor relevancy redactions. You either produce a document or you don't. Redacting for relevance invites disputes over what's truly irrelevant and creates review burdens for both sides. But Coinstar's approach sidestepped that framework by tying the redaction to the witness's actual preparation process, not to a discovery request.
The Approach Taken
Coinstar's legal team made three tactical decisions that shaped the outcome.
First, they produced the documents voluntarily under Rule 612(b) rather than waiting for a formal request. This framed the production as a fairness gesture, not a discovery obligation. The company positioned itself as transparent, "Here's what the witness reviewed", rather than defensive.
Second, they refused to produce a privilege log. Their argument: they're not withholding documents based on privilege, so no log is required. The redactions aren't privilege redactions; they're simply the format in which the witness encountered the material.
Third, they held firm on the scope question. Corkery wanted the unredacted board minutes. Coinstar's position was that Rule 612(b) entitles the adverse party to "the writing" used to refresh the witness's memory. If the witness reviewed a redacted document, that redacted document is the writing.
Judge Moses agreed. She found no authority requiring production of an unredacted document when the witness prepared with a redacted version. The court also declined to require a privilege log, noting that Corkery hadn't shown the redactions were privilege-based or cited any authority requiring a log for Rule 612(b) productions with relevancy redactions.
Results and Metrics
The court denied Corkery's emergency motion. Coinstar's production of approximately 2,000 redacted pages stood as sufficient compliance with Rule 612(b). No privilege log was required. No unredacted versions were compelled.
The ruling created a narrow but useful precedent: when you prepare a witness using redacted materials, you satisfy Rule 612(b) by producing those materials in the same redacted form the witness reviewed them.
What They Would Do Differently
This case doesn't include a post-decision interview, but the procedural record suggests refinements for both sides.
Coinstar's approach worked, but it required careful documentation. If Corkery had been able to show that the witness actually reviewed unredacted versions, or that Coinstar redacted the documents after the witness saw them, the outcome might have shifted. Any team using this strategy needs contemporaneous records showing exactly what the witness reviewed and when the redactions occurred.
Corkery's motion might have gained traction with a different framing. Instead of demanding unredacted documents wholesale, the motion could have targeted specific redactions that appeared to remove factual material relevant to cross-examination. The emergency posture also worked against Corkery, courts are reluctant to grant emergency relief without a clear showing of prejudice.
Takeaways for Your Team
Document your witness preparation process. If you're going to rely on the "we produced what the witness saw" argument, you need proof of what the witness actually saw. Time-stamp the redacted versions. Keep preparation notes that reference the specific documents used. If opposing counsel challenges your production six months later, you need more than memory.
Understand Rule 612(b)'s trigger. This rule activates when a witness uses a writing to refresh their memory before testifying. It doesn't apply to every document your legal team reviews internally. The witness must have actually used the document for preparation. Casual reference in a prep session doesn't count; focused review to refresh memory does.
Relevancy redactions remain risky outside this context. Judge Moses's ruling is narrow. It applies to Rule 612(b) productions where the witness genuinely prepared using redacted materials. Don't read this case as permission to redact for relevance in standard discovery responses. Most courts still prohibit that practice, and you'll need to seek opposing counsel's agreement or court permission before redacting responsive documents for relevance.
Consider the timing of your redactions. Coinstar's strategy worked because the redactions preceded witness preparation. If you redact documents after a witness reviews them, you've created a mismatch between what the witness saw and what you're producing. That's a harder position to defend.
Privilege logs still matter for privilege claims. This ruling doesn't eliminate privilege log obligations. If you're withholding material based on attorney-client privilege or work product, you still need a log. The court simply found that relevancy redactions in Rule 612(b) productions don't trigger the same requirement.
The Coinstar decision won't reshape eDiscovery practice broadly, but it offers a tactical option for teams preparing witnesses with board materials, investigation reports, or other documents containing substantial irrelevant content. Redact before preparation, document what the witness reviewed, and produce exactly that. It's a narrow path, but Judge Moses confirmed it's a defensible one.
