Today’s game is called:  rush the witness.  Fact:  the other side wants to take your client’s deposition before turning over the documents it is obligated to turn over in normal discovery.  What can you, the lawyer do?  After all, the other side is entitled to take your client’s deposition and can do that whenever it wishes to schedule it.  Even before turning over documents responsive to your discovery requests.  There are 2 possible answers:

1. Rush to court for a protective order arguing that your client cannot properly respond to deposition questions without first seeing and reviewing the documents and asking the court to postpone the deposition until after the documents have been turned over to you.
2. Prepping the witness to clearly state that s/he is only guessing and that her/his memory is not certain.  Then say that there are documents which might refresh her/his memory and that the answers might change after reviewing the documents.  If you do this, the other side must either postpone the deposition until after you have received and reviewed the documents or turn the documents over right then for you and your client to review.  (And any answers after the quick review might still change upon further consideration.)

Now, at trial, the other side has a major problem if trial testimony is significantly different from deposition testimony. Why?  Because, when asked why the testimony is different the answer is “You, Mr. Lawyer, did not give me the documents to review (or time to review the documents properly).  Now I have properly reviewed them so I don’t have to guess or make approximations and can testify exactly to what happened.”  Oops!  The jury will love you, the client, and think the lawyer was trying to pull a fast one on you and on them.  Juries hate that.  Heh Heh heh