WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying, either -
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
Except for the deletion of a reference to federal law, no changes were made to the federal rule. Requiring a party to provide a copy of a memorandum used by a witness to refresh recollection so that it may be used on cross-examination of the witness is consistent with prior law. State v. Hamilton, 276 S.C. 173, 276 S.E.2d 784 (1981); State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979). Rule 37(b)(2), SCRCP, and Rule 5(d)(2), SCRCrimP, are similar to the provision in this rule concerning the trial judge's authority to decide the remedy for failure to produce a document for the adverse party.