Refreshing Recollection Doctrine Revisited

, New York Law Journal


In his Evidence column, Albany Law School professor Michael J. Hutter reviews recent decisions that discussed whether the refreshing recollection 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 used by a witness to refresh recollection prior to a deposition effects a waiver of the privilege.

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What's being said

  • Tony Harwood

    Excellent article that clears up a lot on an issue that arises frequently in depositions. So the first and third departments say that a document subject to an unqualified privilege is not subject to disclosure even if it refreshes a witnesses recollection. Is there a contrary view in any of the other departments?

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