McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 353 of 353 results

Chapter: 45.7
Case Name: Kohl v. Werner Co., Case No. 16-CV-1021, 2018 U.S. Dist. LEXIS 65774, at *1 (E.D. Wis. Apr. 19, 2018)
July 11, 2018 (PRIVILEGE POINT)

"Plaintiff Who Videotaped the Defendant's Lawyer and Expert Loses His 'Karma' Work Product Argument"'

Nearly every court protects as work product personal injury defense lawyers' secret surveillance videotapes of plaintiffs engaging in activities that belie their injury claims. Not surprisingly, those courts normally require defense lawyers to produce any videotapes that they intend to use at trial -- although wise courts delay that production until after the defense lawyer has deposed the plaintiff.

In Kohl v. Werner Co., the defense lawyer "learned that an investigator for the plaintiff was videotaping and surveilling defense counsel and the defense expert while they were performing the inspection" of an accident scene. Case No. 16-CV-1021, 2018 U.S. Dist. LEXIS 65774, at *1 (E.D. Wis. Apr. 19, 2018). Defendants claimed that the plaintiff "improperly infringed on the defense counsel's work product" and sought an order "requiring the plaintiff to produce the videotape." Id. at *1-2. Predictably, plaintiff's lawyer "attempts to liken its surveillance of defense counsel to situations where a plaintiff is surveilled as he goes about his daily life." Id. at *3. The court rejected plaintiff's argument – bluntly noting "[t]hat is a far cry from what happened here. It was the defense counsel and his expert that were surveilled, not the client." Id.

The court ordered plaintiff to produce the videotape.

Case Date Jurisdiction State Cite Checked
2018-04-19 Federal WI
Comment:

key case


Chapter: 45.7
Case Name: Kohl v. Werner Co., Case No. 16-CV-1021, 2018 U.S. Dist. LEXIS 65774 (E.D. Wis. April 19, 2018)
(holding that plaintiff could not claim work product for his video tape of defendant's lawyer and consulting expert inspecting property; "During the course of the inspection, defense counsel learned that an investigator for the plaintiff was videotaping and surveilling defense counsel and the defense expert while they were performing the inspection. . . . The defendants argue the plaintiff improperly infringed on the defense counsel's work product and seeks an order requiring the plaintiff to produce the videotape. . . . The defendants previously asked that they be granted leave to return to conduct the inspection without interference from the plaintiff and for the plaintiff to bear the costs of the inspection, but have since withdrawn those requests."; "The plaintiff opposes the motion, arguing that no part of the incident location is private and that the inspection could be viewed by any individual walking on the sidewalk, neighbors, individuals in parked cars, anyone driving on the street, or even the plaintiff himself, who lives three houses away."; "Even considering Wisconsin law, the plaintiff attempts to liken its surveillance of defense counsel to situations where a plaintiff is surveilled as he goes about his daily life. . . . This often occurs in situations where the plaintiff allegedly suffered disabling injuries and the defense seeks to use surveillance to prove that the plaintiff's physical limitations are not as great as those alleged in the lawsuit."; "That is a far cry from what happened here. It was the defense counsel and his expert that were surveilled, not the client. The plaintiff now argues that his surveillance of defense counsel's work product (which plaintiff's counsel neither admits nor denies) has itself become protected work product; thus, he need not produce the videotape. I disagree. While it would have been appropriate for plaintiff's counsel and his agent to be present when defense counsel inspected the premises, this was something wholly different. Plaintiff's investigator surreptitiously surveilled and videotaped defense counsel. Plaintiff has presented no authority or persuasive argument which supports such conduct. Accordingly, plaintiff must produce a copy of the videotape to the defendants. Whether this videotape will be admissible at trial as the defendants request, however, is a question for another day.")

Case Date Jurisdiction State Cite Checked
2018-04-19 Federal WI

Chapter: 45.7
Case Name: Hunt v. Lightfoot, No. 1D17-3938, 2018 Fla. App. LEXIS 2047 (Fla. App. 1d Feb. 9, 2018)
(holding that a surveillance videotape was discoverable only if a litigant would use it at trial; "It is well-established that surveillance videos and other materials prepared by a party's investigator in anticipation of or in connection with litigation are attorney work product. . . . It is also well-established that although the existence of the surveillance must be disclosed upon request whether or not it will be used at trial, the content of the surveillance is discoverable only if it will be used at trial."; "Here, it is undisputed that Hunt does not intend to use the 2016 surveillance video at trial. Thus, the content of the video is not discoverable absent a showing of extraordinary circumstances."; "We have not overlooked Respondent's argument that because Hunt intends to use the 2014 surveillance video at trial, the 2016 video must also be produced in discovery. However, under the circumstances of this case, we do not find this argument -- or the federal cases on which it is based -- persuasive because the videos at issue in this case do not depict a continuous period of surveillance such that principles of fairness and completeness require the production of the later video in conjunction with the earlier video. Rather, the videos involve entirely separate periods of surveillance that were two years apart and were conducted by different companies.")

Case Date Jurisdiction State Cite Checked
2018-02-09 Federal FL

Chapter: 45.7
Case Name: Roach v. Hughes, Civ. A. No. 4:13-CV-00136-JHM, 2015 U.S. Dist. LEXIS 101660 (W.D. Ky. Aug. 4, 2015)
(addressing work product issues related to a surveillance video tape a defendant took of a supposedly injured plaintiff; "Plaintiffs argue that the total duration of surveillance performed on Ms. Roach is relevant to the surveillance video that Defendants will introduce at trial. . . . Plaintiffs argue that the jury is entitled to know the full duration of Defendants' surveillance in order to weigh the accuracy of what is depicted on that portion of the surveillance video that Defendants anticipate using as evidence. Plaintiffs contend that the total duration of surveillance puts the surveillance video in the appropriate context and is relevant to the weight of the surveillance video evidence. The Court agrees and finds that the information sought by Plaintiffs is relevant to the surveillance video evidence Defendants purport to introduce at trial.")

Case Date Jurisdiction State Cite Checked
2015-08-04 Federal KY

Chapter: 45.7
Case Name: Roach v. Hughes, Civ. A. No. 4:13-CV-00136-JHM, 2015 U.S. Dist. LEXIS 101660 (W.D. Ky. Aug. 4, 2015)
(addressing work product issues related to a surveillance video tape a defendant took of a supposedly injured plaintiff; "The Court does not conclude that it erred regarding the production of the second investigator's surveillance video. The Magistrate found that 'the video taken by the second investigator is afforded work product protection because the Defendants do not intend to call the second investigator as a witness and they will not use the video for evidentiary purposes at trial' and was 'not persuaded that the Plaintiffs have demonstrated substantial need for production so as to overcome the work product protection afforded this second video.'")

Case Date Jurisdiction State Cite Checked
2015-08-04 Federal KY

Chapter: 45.7
Case Name: Pinkney v. Winn-Dixie Stores, Inc., Civil Action No.: CV214-075, 2014 U.S. Dist. LEXIS 129604, at *4-5 (S.D. Ga. Sept. 15, 2014)
("While the surveillance video is subject to discovery, the Court retains the discretion to determine the timing of such discovery. See Fed. R. Civ. P. 26(d). Consistent with this Court's recent decision in Pate v. Winn-Dixie Stores, Inc., No. CV213-166, 2014 U.S. Dist. LEXIS 25494, at *3 (S.D. Ga Feb. 20, 2014), the Court finds that Defendant should have an opportunity to depose Plaintiff and Mr. Overstreet based on their own independent, unrefreshed recollections of the incident, prior to producing the surveillance video. Plaintiff will not suffer any prejudice from delaying production of the surveillance video. If either deponent has limited recollection as to any details of the incident, he or she may testify to that.").

Case Date Jurisdiction State Cite Checked
2014-09-15 Federal GA

Chapter: 45.7
Case Name: Sowell v. Target Corp., Case No. 5:14-cv-93-RS-GRJ, 2014 U.S. Dist. LEXIS 72435 (N.D. Fla. May 28, 2014)
(finding that defendant Target created a video tape in the ordinary course of business and that the tape did not become work product because Target preserved it; ordering the tape produced to the plaintiff before her deposition; "Courts addressing this issue like the issue of whether the surveillance videos are work product have taken conflicting views on whether production of the video should be delayed. District courts ordering that delay in production is justified have relied primarily upon the rationale that requiring a plaintiff to provide independent recollection of the incident does not prejudice the plaintiff and delaying disclosure of the video precludes any possibility of a plaintiff tailoring her testimony to the video. . . . In contrast, courts that have refused to delay disclosure of surveillance videos have focused upon whether the video was to be used solely for impeachment purposes or was to be used as substantive evidence."; "While the Court concludes there may be circumstances justifying delay in disclosure of a surveillance tape, the Court finds that Defendant here has not pointed to any justification for delaying disclosure of the tape other than unsupported speculation that the Plaintiff's testimony may be altered in some way to reflect the events on the surveillance tape.")

Case Date Jurisdiction State Cite Checked
2014-05-28 Federal FL

Chapter: 45.7
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *7-8 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance videotape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "As defendants point out, courts have uniformly ordered the discovery of surveillance videos in cases like this despite their status as work product. . . . Courts ordering the discovery of surveillance videos have done so recognizing that video or film can sometimes be misleading or incomplete, depending on editing or other circumstances.")

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 45.7
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *12-13 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance video tape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "Here, any photographic or audio information or materials taken in conjunction with the surveillance of plaintiffs and their family are similar to the video evidence already produced and should in fairness be disclosed to plaintiffs. Like video evidence, photographic or audio evidence is potentially subject to distortion or manipulation and may be misleading depending on the context in which it was produced or presented. . . . In fairness, plaintiffs should be given the opportunity to examine these materials to prevent the potential for selective and misleading presentation of the evidence. Fed. R. Evid. 502(a)(3).")

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 45.7
Case Name: Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., Civ. A. File No. 1:11-CV-4483-SCJ-AJB, 2013 U.S. Dist. LEXIS 104040, at *20-21 (N.D. Ga. July 19, 2013)
(holding that a secret tape recording can be protected work product, after the ABA issued an opinion finding that such tape recording was not unethical; "Pursuant to Rule 26(b)(3)(C), '[a]ny party or other person may, on request and without the required showing, obtain the person's own previous statement about the action or its subject matter.'. . . Plaintiff argues that if a witness properly requests his own statement under this rule, disclosure should be delayed until after the deposition. The Court agrees. . . . Although the Court acknowledges Defendant's concern that the recording of the Prices was made three years ago, and thus the Prices have little memory of what was said, Rule 26(b)(3)(C) does not entitle parties to immediate discovery of their previous statements.")

Case Date Jurisdiction State Cite Checked
2013-07-19 Federal GA B 4/14

Chapter: 45.7
Case Name: Muzaffarr v. Ross Dress For Less, Inc., 941 F. Supp. 2d 1373, 1375 (S.D. Fla. 2013)
("The undersigned adopts the analysis in a case not cited by either party, Dehart v. Wal-Mart Stores, East, 2006 U.S. Dist. LEXIS 605, 2006 WL 83405 (W.D. Va. 2006). In Dehart, the Court distinguished between surveillance tapes used solely for impeachment purposes, and surveillance tapes having predominantly substantive value as evidence of the underlying facts surrounding the incident giving rise to the plaintiff's complaint."; "In this case, the videotape at issue depicts the incident giving rise to the Plaintiff's complaint. While it could be offered for impeachment value, the primary evidentiary value of such a tape is as proof of the underlying facts surrounding the incident. Therefore, the videotape should be produced to the Plaintiff prior to her deposition.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 3/14

Chapter: 45.7
Case Name: McClure v. Publix Super Markets, Inc., 124 So/ 3d 998, 998, 999 (Fla. Dist. Ct. App. 2013)
(holding that a grocery store's surveillance video tape of a personal injury plaintiff deserved work product protection, and that the defendant could depose the plaintiff before producing the video tape; "Petitioner, Judith McClure, a plaintiff in a slip and fall negligence case, seeks certiorari review of an order compelling her deposition prior to the production of a store security video of the slip and fall."; "The trial court denied McClure's motion, permitting Publix to delay production of the video until it had completed a deposition of McClure. McClure's petition to this court followed."; "The petitioner has not shown that if she answers questions at a deposition, prior to production of the security store video showing the fall, that any harm will occur or that the video will somehow conflict with her statements at the deposition. Moreover, petitioner has not shown the trial court's order shall, in any meaningful sense, delay McClure's discovery.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State FL B 5/14

Chapter: 45.7
Case Name: Smith v. Chen, 2013-Ohio-4931, at ¶¶ 24, 27, 28 (Ohio Ct. App. 2013)
("The court's conclusion that the surveillance video will affect the substantive issue of damages was not an abuse of discretion. Plaintiff claimed in his complaint that he suffered a loss of enjoyment of life and an inability to engage in daily activities as a result of his injuries. Thus, the surveillance video will help to establish or negate the extent of plaintiff's damages."; "[T]he trial court's conclusion that plaintiff had a compelling need to view the video prior to trial, to ascertain 'in advance if the video images have somehow been manipulated, or if the person on the video is actually Plaintiff,' was an accurate conclusion."; "While plaintiff may so structure his trial testimony, if plaintiff's trial testimony differs from his deposition testimony, taken before plaintiff had a chance to view the video, defendants will be able to impeach plaintiff with his deposition testimony. If plaintiff's trial and deposition testimony are the same, then the video will either impeach plaintiff's testimony, or it will not, because plaintiff's testimony will align with the images on the video.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State OH B 5/14

Chapter: 45.7
Case Name: Fare v. Doe, 66 Va. Cir. 61, 62 (Va. Cir. Ct. 2004)
(finding that the work product doctrine did not protect surveillance videotape relied upon by a doctor in preparing an independent medical examination; ordering the surveillance videotape produced before trial, but allowing defendant to depose the plaintiff first; "Virginia circuit courts vary on when video surveillance should be disclosed; however, the courts have consistently held that, if a defendant intends to use a video at trial, that the defendant will have the right to depose the plaintiff prior to disclosure of the video. See Fender v. Norfolk Southern Ry., 55 Va. Cir. 344, 346 (City of Norfolk 2001); Runions v. Norfolk & Western Ry., 51 Va. Cir. 341, 344 (City of Roanoke 2000); McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302, 302-03 (City of Richmond 1990). The facts of this case are distinguishable from the opinions cited above in that this video may not only be introduced at trial, but was relied on by Defendant's expert in the Independent Medical Examination. Not only must the Court consider that, if the video were not disclosed until trial, the Plaintiff would be prejudiced by not being adequately prepared at trial, but also, Plaintiff would be prejudiced by not being afforded the opportunity to show the video to Plaintiff's experts in advance of trial so that Plaintiff's experts may use the video in forming their opinions. The Court must find a balance between Plaintiff's interests and Defendant's interest in not disclosing the video until after Plaintiff has been deposed. The parties have agreed to continue the trial for this matter that was previously scheduled on November 10, 2004. The Court orders that Defendant has the right to depose Plaintiff prior to disclosure of the surveillance video but requires that Defendant promptly produce the video to Plaintiff after Plaintiff's deposition and in no case later than ninety days prior to trial.")

Case Date Jurisdiction State Cite Checked
2004-01-01 State VA B 3/16

Chapter: 45.7
Case Name: Fender v. Norfolk S. Ry. Co., 55 Va. Cir. 344, 346 (Va. Cir. Ct. 2001)
("This Court rules that if there are surveillance videotapes of Defendant which will be used at any time during the trial of the instant case, that Defendant's counsel shall notify Plaintiff's counsel at least twenty days before the trial date of the existence of such videotapes and true copies of same shall be provided to counsel for Plaintiff by counsel for Defendant at least fifteen days prior to trial. If the time schedules set forth in the preceding sentence are not complied with, surveillance videotapes may not be utilized by Defendant at trial. In any event, before Defendant is required to provide the surveillance videotapes as required in the preceding paragraph, the deposition of the Plaintiff and responses to all interrogatories and other discovery materials as contemplated by the existing Scheduling Order will have been provided by Plaintiff to Defendant.")

Case Date Jurisdiction State Cite Checked
2001-01-01 State VA B 3/16

Chapter: 45.7
Case Name: Stanley v. Norfolk S. Ry., No. CL990662 (Va. Cir. Ct. (Alexandria) Aug. 30, 2000) (summary at Va. Law. Wkly. 002-8-213, at 4 (Feb. 5, 2001))
(holding that defendant's surveillance videotape of a plaintiff deserved work product protection, but that the plaintiff "has shown a substantial need to discover" the surveillance videotape; requiring defendant to produce the videotape after the plaintiff's deposition)

Case Date Jurisdiction State Cite Checked
2000-08-30 State VA B 3/16

Chapter: 45.7
Case Name: Gutshall v. New Prime, Inc., 196 F.R.D. 43, 45 n.2 (W.D. Va. 2000)
("[t]he work product doctrine is not a 'privilege,' but a sort of 'qualified immunity' from discovery"; finding that a surveillance tape of a personal injury plaintiff amounted to work product but that plaintiff had established sufficient "substantial need" to justify compelling the defendant to produce the videotape)

Case Date Jurisdiction State Cite Checked
2000-07-19 Federal VA B 3/16

Chapter: 45.7
Case Name: Gutshall v. New Prime, Inc., 196 F.R.D. 43, 45, 46 (W.D. Va. 2000)
(noting that "[t]he Fourth Circuit has not addressed the issue of the discoverability of surveillance evidence in a civil case"; finding that the tape "falls within the broad scope of Rule 26(b)(1)" even though the defendant in a personal injury case only intended to use the surveillance videotape for impeachment purposes; concluding that the surveillance tape was work product but indicating that "a plaintiff alleging claims for personal injury has a substantial need for surveillance evidence in preparing his case for trial, due to the relevance and importance of such evidence, and the substantial impact it may have at trial. Further, it is impossible to procure the substantial equivalent of such evidence without undue hardship, as videotape 'fixes information available at a particular time and a particular place under particular circumstances, and therefore cannot be duplicated,'" (quoting Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 586 (S.D. Tex. 1996)); requiring that the defendant produce the surveillance videotape without explaining whether it should be produced before or after the plaintiff's deposition)

Case Date Jurisdiction State Cite Checked
2000-07-19 Federal VA B 3/16

Chapter: 45.7
Case Name: Runions v. Norfolk & W. Ry., 51 Va. Cir. 341, 344 (Va. Cir. Ct. 2000)
("The court will therefore order that (1) the contents of surveillance movies, tape, and photographs must be disclosed if the materials will be used as evidence either substantively or for impeachment; and (2) the plaintiff and his attorneys must be afforded a reasonable opportunity, consistent with the needs expressed by the Court in Dodson, to observe these movies or photographs before their presentation as evidence. Within its discretion, however, the court will further order that the defendant has the right to depose the plaintiff before producing the contents of the surveillance information for inspection. Counsel will forthwith arrange for the plaintiff's deposition to be taken. As soon as Mr. Runions has signed the deposition transcript, or, if he waives signature, as soon as his deposition is concluded, NW's lawyers will produce the surveillance materials.")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA B 3/16

Chapter: 45.7
Case Name: Gutshall v. New Prime, Inc., 196 F.R.D. 43, 46 (W.D. Va. 2000)
("The court agrees with the majority of courts that considered the issue, and finds that a plaintiff alleging claims for personal injury has a substantial need for surveillance evidence in preparing his case for trial, due to the relevance and importance of such evidence, and the substantial impact it may have at trial. Further, it is impossible to procure the substantial equivalent of such evidence without undue hardship, as videotape 'fixes information available at a particular time and a particular place under particular circumstances, and therefore cannot be duplicated.' Smith [v. Diamond Offshore Drilling, Inc.], 168 F.R.D. [582,] 586 [(S.D. Tex. 1996)] (citation omitted). Notwithstanding the work product status of the surveillance evidence, it therefore must be produced by New Prime pursuant to Federal Rule of Civil Procedure 26(e)(2). The plaintiff's motion to compel shall be granted.")

Case Date Jurisdiction State Cite Checked
2000-01-01 Federal VA B 3/16

Chapter: 45.7
Case Name: Runions v. Norfolk & W. Ry., 51 Va. Cir. 341, 344 (Va. Cir. Ct. 2000)
(assessing a personal injury plaintiff's attempt to discover a surveillance videotape taken by defendant; ordering that the surveillance tape "must be disclosed if the materials will be used as evidence either substantively or for impeachment"; relying on its discretion to "further order that the defendant has the right to depose the plaintiff before producing the contents of the surveillance information for inspection")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA nsvb 2/23/04

Chapter: 45.7
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42 (Va. Cir. Ct. 1997)
(ordering the defendant to produce a videotape of herself if she intended to use the tape at trial)

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.7
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42, 44-45, 46 (Va. Cir. Ct. 1997)
(addressing work product protection for a surveillance videotape of plaintiff taken by defendant after an accident; "After litigation had commenced, the defendant caused a video to be taken of the plaintiff for possible use at trial. This video is unquestionably work product prepared in connection with the instant action. Defendant has agreed to make the video available for review by the plaintiff in the event she elects to make use of it at trial."; "[S]he has shown the videotape to have been prepared for possible use at the trial of the case. Counsel for the defendant has represented that he will make the tape available prior to trial in the event he elects to make use of it. Fairness would dictate that the videotape material be made available to the plaintiff in sufficient time for the plaintiff to take additional discovery as to its contents."; "Defendant need only produce the video in the event it is to be used at the trial of the case for any purpose. Plaintiff fails to demonstrate a substantial need unless it were to be so utilized. As counsel for Ms. McGuire has represented [that] they will make such video available should they elect to use it at trial, no further direction from the Court is necessary except to require production in sufficient time that plaintiff may engage in discovery with respect to the video.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.7
Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 356 (Va. Cir. Ct. 1991)
(addressing work product protection for a surveillance videotape of a plaintiff prepared by a defendant railroad; concluding that the surveillance videotape deserved work product protection, which the plaintiff could not overcome; "If the diligence and industry of NRPC has revealed, through surveillance, evidence of exaggeration or outright lying on the part of Smith, this court will not strip it of the advantage gained without a showing which will meet the requirements of the rule to overcome the protected status of the material. This court finds that any facts learned by the surveillance is [sic] within the plaintiff's knowledge[;] he has the substantial equivalent of anything that has been learned by the defendant and has it without undue hardship. The rule does not require that he have it in the same form as does his adversary.")

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA

Chapter: 45.7
Case Name: Lee v. R.F. & P. R.R., 23 Va. Cir. 357 (Va. Cir. Ct. 1991)
(holding that a surveillance videotape must be produced if it is to be used at trial, but allowing defendant to depose plaintiff before producing the videotape)

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA

Chapter: 45.7
Case Name: Moore v. CSX Transp., Inc., 22 Va. Cir. 97, 98 (Va. Cir. Ct. 1990)
(holding a surveillance film to be discoverable; "Because the parties do not question that the film was made for use at trial to impeach plaintiff and thereby provide a prophylactic effect against any possible perjury, the question is whether plaintiff cannot gather the substantial equivalent by other means. Certainly, no one knows plaintiff's activities and lifestyle better than plaintiff himself. When given the day and time of the surveillance, plaintiff would be caused to remember the occasion and would thereby have available through his own recollection the substantial equivalent of what defendant has captured on film. While remembering the occasion in this way would perhaps give plaintiff the equivalent, the film itself may fill in detail and give plaintiff a source for offering explanation that memory alone may not give. There is no way to film plaintiff's past activities because the same things defendant has recorded can no longer be filmed. I do not believe plaintiff can get a substantial equivalent of the tape without seeing the past recorded activities depicted on the tape itself."); not explaining whether the defendant could depose the plaintiff before disclosing the videotape)

Case Date Jurisdiction State Cite Checked
1990-01-01 State VA

Chapter: 45.7
Case Name: McIntyre v. CSX Transp., Inc., 22 Va. Cir. 302 (Va. Cir. Ct. 1990)
(holding that a surveillance videotape was discoverable, but allowing defendant to depose plaintiff before notifying plaintiff of the videotape's existence or producing it)

Case Date Jurisdiction State Cite Checked
1990-01-01 State VA

Chapter: 45.9
Case Name: Berens v. Berens, No. COA15-1136, 2016 N.C. App. 836 (N.C. App. Aug. 16, 2016)
(finding that a mother's videotapes of the father's visitation with their children deserved work product protection, but that the father could overcome the work product protection; "Here, there is no dispute that the custody exchange videos are work product -- the videos are tangible things prepared in anticipation of litigation or trial and were secured by a private investigator -- an agent -- of defendant-mother's attorney. . . . The question at issue is whether plaintiff-father has a substantial need for the custody exchange videos and if so, whether there is no other way for him to obtain a substantial equivalent without undue hardship."; "Defendant-mother . . . argues that, even assuming plaintiff-father has established a substantial need for the videos, he has failed to establish an undue hardship to obtain the substantial equivalent. Defendant-mother argues that, with today's technology, plaintiff-father could have simply pulled out a phone to record the same exchanges recorded by the videos. However, the test for undue hardship is not whether a party 'could have done all the same things,' or could have obtained the same information at some point in the past, but whether the party is able 'without undue hardship to obtain the substantial equivalent of the materials by other means.' N.C.G.S. § 1A-1, Rule 26(b)(3). Defendant-mother's argument fails where she attempts to claim that it is no undue hardship for plaintiff-father to travel back in time and create his own video recordings of events which have already taken place.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal NC
Comment:

key case


Chapter: 45.9
Case Name: Graves v. Southland Corp., No. 4:99CV00036 (E.D. Va. July 14, 1999)
(finding that statements taken by a company's risk management service after an incident were protected by the work product doctrine; further holding that the plaintiff's lawyer had not established that plaintiff could not obtain the substantial equivalent information without undue burden; "Dunn and Nottingham [company employees] are susceptible to being deposed, though neither has been deposed since September 13, 1993, a period of almost six years. Thus, information readily available to plaintiff has not been pursued by plaintiff in a timely fashion.")

Case Date Jurisdiction State Cite Checked
1999-07-14 Federal VA

Chapter: 45.9
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327-28 (Va. Cir. Ct. 1996)
(in a civil case arising from a traffic accident, ordering the plaintiff to make a transcript of the traffic court proceedings the plaintiff had ordered prepared available to defendant (in return for payment of duplications costs) because "defendant also has a substantial need for the material in preparation of the case," although agreeing with the plaintiff that the defendant could also have arranged to have a transcript prepared)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 45.15
Case Name: Fare v. Doe, 66 Va. Cir. 61, 62 (Va. Cir. Ct. 2004)
(finding that the work product doctrine did not protect surveillance videotape relied upon by a doctor in preparing an independent medical examination; ordering the surveillance videotape produced before trial, but allowing defendant to depose the plaintiff first; "Although Plaintiff has been made aware of categories of activities that Plaintiff performs in Defendant's video, the Court finds that Defendant's video is unique and depicts Plaintiff doing something at a time in the past that will never reoccur. Even if Plaintiff were to be videotaped conducting the same activities, it would not be the substantial equivalent. The Court also finds that the purposes of the Rules of the Virginia Supreme Court for discovery to prevent surprise and promote an orderly and expeditious trial will be advanced by disclosure of the video by Defendant to Plaintiff in advance of trial.")

Case Date Jurisdiction State Cite Checked
2004-01-01 State VA

Chapter: 45.202
Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at*24 n.16 (4th Cir. Sept. 24, 2014)
("We recognize that the work product doctrine is not a privilege but rather 'a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.'")

Case Date Jurisdiction State Cite Checked
2014-09-24 Federal

Chapter: 45.202
Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 574 (S.D.N.Y. 2013)
("Work-product immunity is conditional.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 45.202
Case Name: Dudley v. Cash, 82 Va. Cir. 1, 17 (Va. Cir. Ct. 2010)
("[M]atters sought to be discovered fall into three categories. Some are clearly discoverable, some are privileged (and are not discoverable), and some are work product (and are conditionally discoverable).")

Case Date Jurisdiction State Cite Checked
2010-01-01 State VA

Chapter: 45.202
Case Name: Campbell v. Dastoor, 79 Va. Cir. 569, 570, 573 (Va. Cir. Ct. 2009)
(analyzing the privilege and work product implications of a doctor sued for medical malpractice moving to another employer (PCA), which was the named insured patient in the medical malpractice insurance policy; explaining that the new employer's president and CEO attended the defendant doctor's deposition and mediation, and "has been involved in face-to-face and telephone conversations with counsel for Defendant and with the claim specialist for Hudson [medical malpractice insurance carrier]. Dr. Polverino [CEO] also received electronic mail from defense counsel, Hudson, and Defendant." (footnotes omitted); "The work product doctrine 'does not offer absolute immunity, and discovery will be permitted where a showing of necessity greater than the normal requirement for good cause is made.'" (footnote omitted))

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA

Chapter: 45.203
Case Name: In re Methyl Tertiary Butyl Ether ('MTBE') Prods. Liab. Litig., 293F.R.D. 568, 574 (S.D.N.Y. 2013)
("Work-product immunity is conditional.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NY B 4/14

Chapter: 45.301
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *27 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "But the 'substantial need' exception has no applicability where the attorney work-product privilege has already been waived. Put differently, waiver is a threshold question. The 'substantial need' inquiry provides an escape hatch for a party seeking discovery of otherwise-protected attorney work product. But if the work-product protection has been waived, the moving party is entitled to discovery of such work product, even without showing substantial need.")

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 45.302
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *9 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Substantial need and undue hardship are related inquiries because it is necessary to define the information for which a party has a substantial need in order to determine whether substantially equivalent information can be obtained without undue hardship.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.303
Case Name: Taber v. Ford Motor Company, Case No. 16-00162-CV-W-SWH, 2017 U.S. Dist. LEXIS 160709 (W.D. Mo. Sept. 29, 2017)
(holding that plaintiff could overcome Ford's work product protection for post-accident pictures; "This privilege log claims the work product privilege for photographs taken of vehicles following accidents. . . . Plaintiffs contend these cases involve similar accidents in that the airbags are alleged not to have deployed after moderate to severe frontal impacts and that the photographic evidence of the condition of the fuse and other parts of the vehicles are essential to their claim. Ford asserts the work product privilege for photographs taken in the Bryant, Dunwoody and Hood cases as well as for the initial draft of an expert report . . . . As discussed above, plaintiffs have established a substantial need for OSI material and have offered evidence that counsel for plaintiffs has attempted to obtain the photographs from other sources and was not able to do so because of the age of the cases.")

Case Date Jurisdiction State Cite Checked
2017-09-29 Federal MO

Chapter: 45.303
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that plaintiff had a substantial need for work product because the CEO of Ottomotto pleaded the Fifth Amendment; "[I]n light of Levandowski's refusal to answer questions or produce documents on the basis of his Fifth Amendment privilege, Waymo has demonstrated a substantial need for fact work product reciting Levandowski's statements or attaching documents/materials found on Levandowski's devices or that Levandowski otherwise provided Stroz.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA
Comment:

key case


Chapter: 45.303
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("The court agrees that broad unsubstantiated assertions of unavailability or faulty memory are insufficient to arise to a substantial need. However, in this case, the Plaintiffs have sought production of documents to refresh the recollection of witnesses who are no longer employed in their relevant positions with ACE. Thus, it is reasonable to conclude that these witnesses may be unable to remember facts relevant to the Plaintiffs' deposition. Further, the Plaintiffs have indicated that the depositions will take place in Canada, To promote efficiency, and prevent repeated depositions, the court finds that the Plaintiffs have presented more than a mere unsubstantiated assertion of faulty memory. Thus, the Plaintiffs have a substantial need for said documents.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 45.303
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("State Street has not established any substantial need for the chronology. . . . And authorities cited (ordinary 'fact' work product may be ordered produced if there is a substantial need for the materials). Since State Street is free to depose Mr. Szulik, it can obtain the factual information contained in the document from him.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 45.303
Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
(applying the work product protection to a defendant employee's selection of documents; "Plaintiffs have received all of the underlying data used to generate the subject documents, via Simulink and source code as well as financial disclosures, which would enable Plaintiffs to generate, for themselves, the substantial equivalent of these documents.")

Case Date Jurisdiction State Cite Checked
2014-07-11 Federal MD

Chapter: 45.303
Case Name: Kephart v. ABB, Inc., Civ. A. No. 2:12-668, 2014 U.S. Dist. 51411 (W.D. Pa. April 14, 2014)
(holding the plaintiff injured in a boiler explosion could seek access to documents about the defendant's investigation, because the plaintiff could overcome the defendant's work product protection; "[E]ven if Defendant had established that the drawings were work product created in anticipation of litigation, Plaintiffs have demonstrated the substantial need for access to these drawings given the fact that they did not have the opportunity to conduct an independent investigation of the boiler system and the explosion site.")

Case Date Jurisdiction State Cite Checked
2014-04-14 Federal PA

Chapter: 45.303
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; "Plaintiff demonstrates a substantial need for the material in light of the fact that witnesses do not recall any details of the incident or the contents of the EIS Report Witness Statements, nor did they review their statements before being deposed.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA

Chapter: 45.303
Case Name: Gov't Emps. Ins. Co. v. Saco,No. CV 2012-5633 (NGG) (MDG), 2013 U.S. Dist. LEXIS 142916, at *4 (E.D.N.Y. Oct. 2, 2013)
(selecting a "trigger date" for documents traded by an insurance company in a third-party bad faith claim context; "Courts in this Circuit have found that 'substantial need' and 'undue hardship' do not exist where the information sought can be obtained through depositions or other discovery methods.")

Case Date Jurisdiction State Cite Checked
2013-10-02 Federal NY B 5/14

Chapter: 45.303
Case Name: U.S. Ethernet Innovations LLC v. Acer, Inc., No. C 10-03724 CW (LB), 2013 U.S. Dist. LEXIS 142896, at *22-23 (N.D. Cal. Sept. 25, 2013)
(analyzing work product protection for documents created by a former HP consultant, now working with K&L Gates as a consultant; finding that the work product doctrine protected the consultant's documents; "That being said, a fact witness's view about relevant documents is closer to fact information than work product. A related issue is that even with work-product culled documents, 'substantial need' can justify disclosure of the culled documents. Part of the reason that there might not be a substantial need is that USEI is free under the district court's August 16 order to talk with Mr. Baker [Consultant] about what is important in the litigation regarding the enforcement of the patents, including his assessment of the important documents. This does not mean that USEI can ask what HP thinks is important or what Mr. Baker said to HP, but it can ask what Mr. Baker thinks is important. (HP agreed with this point at the hearing.) USEI's interests are protected by the district judge's order allowing it access to Mr. Baker and preventing HP from preventing access or requiring access only through HP and its counsel.")

Case Date Jurisdiction State Cite Checked
2013-09-25 Federal CA B 5/14

Chapter: 45.303
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *9-10 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "[I]n Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666, 671 (S.D. Ca. 2000), the court, quoting 6 James Wm. Moore et al., Moore's Federal Practice §26.70[5][c], at 26-221 to 26-222 (3d Ed. 1999), held that '[t]he substantial need prong examines: (1) whether the information is an essential element in the requesting party's case and (2) whether the party requesting discovery can obtain the facts from an alternate source,' and observed that 'a party's desire to find corroborating evidence is insufficient to establish substantial need.' Using this type of standard, courts have denied a request to produce information protected by the work product doctrine if the requesting party 'has not demonstrated that the information is integral to the preparation of its case.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.303
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 42 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "ChemWerth argues that it has a substantial need to obtain the challenged documents because 'they are vital to ChemWerth's claims and defenses in this action, in which ChemWerth alleges that Bryan Corp. and/or Waldman [plaintiff's FDA consultant], alone or in collusion, planned an illegal scheme to blame ChemWerth for Bryan Corp. and/or Waldman's failure to develop a FDA-approvable TS product.'. . . However, ChemWerth has not explained why it could not obtain this information through depositions of fact witnesses.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 45.303
Case Name: In re McDowell, 483 B.R. 472, 496 (Bankr. S.D. Tex. 2012)
("With this alternative available to the UST [United States Trustee] -- the UST can depose the Debtors -- there is not a substantial need at present for the requested documents.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX B 7/13

Chapter: 45.303
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *13-14 (E.D. Va. July 18, 2011)
(finding that plaintiff could not overcome defendant's work product protection; "Third, MWV does not have a substantial need for the materials at issue because it will have a substantial equivalent of the information that it seeks. MWV will have an opportunity to cross examine Doctor Ortega regarding the adequacy of the crystallinity testing methods employed. This opportunity severely limits MWV's need for testing information that was provided by UMinn and Bruker, especially because these two witness groups will not be testifying in this case. Therefore, MWV has not shown that it lacks a substantial equivalent to the materials at issue because UMinn and Bruker will not testify and Plaintiff will have an opportunity to cross examine Defendant's expert witness.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.303
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *11-12 (E.D. Va. July 18, 2011)
("Overcoming this burden is not lightly undertaken by a party seeking access to a non-testifying expert witness. See, e.g., Sanford v. Virginia, No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2 (E.D. Va. Sept. 14, 2009) ('[D]iscovery of fact work product is permitted, but a party seeking disclosure must demonstrate [1] that its need is truly substantial, and [2] that there is no reasonable substitute for the documents they seek.'); see also In re Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994) (citing In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981)) (demonstrating that fact work product 'can be discovered only in limited circumstances' and only 'upon a showing of both a substantial need and an inability to secure the substantial equivalent') (emphasis added). The Court has noted that the following factors may be considered to determine whether there is a 'substantial need' for work product: '(1) importance of the materials to the party seeking them for case preparation; (2) the difficulty the party will have obtaining them by other means; and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks.' Sanford, 2009 U.S. Dist. LEXIS 83979, 2009 WL 2947377, at *2.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA

Chapter: 45.303
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 608-609 (E.D. Va. 2010)
("Factors to consider in determining the existence of substantial need include '(1) importance of the materials to the party seeking them for case preparation; (2) the difficulty the party will have obtaining them by other means; and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks.' Sanford, at *9 [Sanford v. Virginia, No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *6-7 (E.D. Va. Sept. 14, 2009)] (citing Fed. R. Civ. P. 26, advisory committee's note, 1970 Amendments)

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 45.303
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *7-8 (E.D. Va. Sept. 14, 2009)
("A recent decision by a District Court within the Fourth Circuit, Tustin v. Motorists Mutual Insurance Co., 2009 U.S. Dist. LEXIS 4853, *13-14 (N.D. W. Va. Jan. 23, 2009), described the seeking party's burden as follows: 'In showing a substantial need, the movant must specifically articulate the necessity for the documents or other tangible things. The movant must also demonstrate why or how alternative sources for obtaining the substantial equivalent are unavailable.' Tustin quoted a Sixth Circuit decision, In re Grand Jury Subpoena Dated Nov. 8, 1979, 622 F.2d 933, 935 (6th Cir. 1980), which noted that '[w]hen a party does not make any showing that other witnesses were unknown to it or unavailable to testify, it is merely "on a general fishing expedition" into the attorney's files to satisfy itself that nothing has been overlooked. The work-product protection forbids such excursions.'" (citations omitted))

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.303
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *17-18 (W.D. Va. Apr. 15, 2008)
(finding that a plaintiff suing the VA had not established sufficient grounds to overcome the government's work product protection; "At oral argument, plaintiff suggested that substantial need may be met here due to the passage of time and the need to get factual information concerning this incident obtained closer to the date of the incident. On balance, and given the fact that the court is ordering production of the VA OIG report and its attachments which contain timely factual information about this incident, it does not appear that plaintiff can meet its burden of showing substantial need for the peer review reports. As such, given the production of the VA OIG reports, the peer review materials need not be produced.")

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 45.303
Case Name: Hawkins v. Norfolk S. Ry., 71 Va. Cir. 285, 290 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "'The substantial need prong examines (1) whether the information is an essential element in the requesting party's case and (2) whether the party requesting discovery can obtain the facts from an alternate source.' Fletcher v. Union Pacific RR., 194 F.R.D. 666, 671 (S.D. Cal. 2000) (quoting 6 James Wm. Moore et al., Moore's Federal Practice, § 26.70[5][C], at 26-221 to 26-222 (3d ed. 1999)).")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 45.303
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "In proceeding, and in her deposition, Hawkins made statements suggesting that she regrets her inability to remember details about the accident. The fact that Hawkins' memory is at issue and that Hawkins' contemporaneous statements regarding the accident are not available to both parties leads the Court to conclude that Massenburg has shown substantial need for the documents.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.303
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(finding that the work product protection covered materials collected by the defendant's insurance company in anticipation of litigation; quoting another court in explaining that "'the substantial need prong examines: 1) whether the information is an essential element in the requesting party's case, and 2) whether the party requesting discovery can obtain the facts from an alternate source.'" (citation omitted); finding that a loss activity report about plaintiff's driving record collected by the defendant's insurance company is not important for plaintiff's case, and could be collected by plaintiff without undue hardship)

Case Date Jurisdiction State Cite Checked
2003-01-01 Federal VA

Chapter: 45.303
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 205-206 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The burden of overcoming work product protection, by proving substantial need and undue hardship is on the party seeking the materials. State Farm v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984) (relying upon Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 F.R.D. 397, 410 (E.D. Va.1975)); Covington, 40 Va. Cir. at 493. The substantial need prong examines: 1) whether the information is an essential element in the requesting party's case, and 2) whether the party requesting discovery can obtain the facts from an alternate source.' Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000) (quoting 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 26.70[5][C], at 26-221 to 26-222 (3d ed. 1999)). See also Nat'l Union Fire Ins. v. Murray Sheet Metal, 967 F.2d 980, 984-985 (4th Cir. 1992)")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.303
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 207 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "In the case at hand, Plaintiff does not argue that the production of the loss activity report on him, obtained by Defendant's insurer, will aid him in establishing an essential element of his case. Indeed, there appears to be no relation between the loss activity report on Plaintiff and establishing any element of Plaintiff's claim. Further, this court assumes without deciding that access to such information is as available to Plaintiff as it is to Defendant, thus rendering the issue of undue hardship to Plaintiff moot.")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.303
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(finding that work product protection covered materials collected by defendant's insurance company in anticipation of litigation; quoting another court in explaining that "`the substantial need prong examines: 1) whether the information is an essential element in the requesting party's case, and 2) whether the party requesting discovery can obtain the facts from an alternate source.'" (citation omitted); finding that a loss activity report about plaintiff's driving record collected by the defendant's insurance company is not important for plaintiff's case and could be collected by plaintiff without undue hardship)

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.303
Case Name: In re S<3> LTD., 252 B.R. 355, 364-65 (E.D. Va. 2000)
("[A]s with all of the other discovery MANCON has propounded, the information sought therein may enlighten any number of issues before the Court concerning the Motion to Lift Protective Order and the Sanctions Motion. In addition, the Vander Schaaf Report is, on its face, apparently the only complete source of the information contained in the Disclosure regarding Vander Schaaf's findings. (footnote omitted) Thus, MANCON has a demonstrated substantial need for the Vander Schaaf Report, and that it would be an undue hardship for MANCON to obtain the report's contents elsewhere. Therefore, MANCON is entitled to discovery of the report's nonopinion elements, though the other parts of the report would be considered opinion work product and would ordinarily be privileged.")

Case Date Jurisdiction State Cite Checked
2000-01-01 Federal VA

Chapter: 45.303
Case Name: Harris v. Skyhook Corp., 8 Va. Cir. 307, 309, 310 (Richmond 1987)
(finding that the party seeking materials had not proven need although two years had passed since the interviews it unsuccessfully sought).")

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 45.304
Case Name: Leakey v. The Setai Group LLC, 151298/2014, 2017 N.Y Misc. LEXIS 3215, 2017 NY Slip Op 31806(U) (N.Y. Sup. Ct. Aug. 28, 2018)
(holding that a non-party witnesses affidavit deserved fact rather than opinion work product protection; "[T]his court declines to compel disclosure of the non-party witness affidavits at this time, since Plaintiff failed to meet her burden of showing the she is unable, without undue hardship, to obtain the substantial equivalent of the affidavits by other means. Defendants provided Plaintiff with the last known addresses and phone numbers of multiple former employee non-party witnesses. Plaintiff concedes that she has information to believe that at least one non-party witness lives out of the state but Plaintiff failed to secure an open commission to take the deposition of this witness. Plaintiff also failed to show her due diligence of securing any witness for a deposition as Plaintiff has not served any non-party witness with a deposition subpoena. Furthermore, Plaintiff failed to support her conclusory argument that the non-party witnesses are unresponsive as Plaintiff failed to include any supporting documentation, such as a call log, returned letters, postal search, or affidavit from a private investigator detailing his or her due diligence to search for the witnesses. As such, the court grants Defendants' motion for a protective order. Nevertheless, to avoid additional motion practice, Defendants, at their discretion, may produce the non-party affidavits subject to redactions of any privileged or confidential information.")

Case Date Jurisdiction State Cite Checked
2018-08-28 State NY

Chapter: 45.304
Case Name: In re Aggrenox Antitrust Litig., No. 3:14-md-02516, 2018 U.S. Dist. LEXIS 22860 (D. Conn. Feb. 12, 2018)
(rejecting a motion to certify an appeal under 28 U.S.C. § 1291; "I relied upon district court decisions from this circuit that held '[a] substantial need exists 'where the information sought is 'essential' to the party's defense, is 'crucial' to the determination of whether the defendant could be held liable for the acts alleged, or carries great probative value on contested issues.'")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CT

Chapter: 45.304
Case Name: Delmonico v. A.O. Smith Corp. (In re Asbestos Litig.), C.A. No. PC-14-2901, 2016 R.I. Super. LEXIS 9, at *9 (R.I. Super. Ct. Jan. 22, 2016)
(finding that plaintiff's affidavit about asbestos exposure deserved work product protection, and holding after an in camera review of the withheld documents that the defendant could not overcome the work product doctrine on the grounds that the affidavit might provide impeachment material; "Although Defendant claims substantial need based on the potential for impeachment evidence, the Court can reassure Defendant that the exposure affidavits and the answer to interrogatory number six are nearly identical, and thus there is no impeachment evidence to be found.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal RI B 7/16

Chapter: 45.304
Case Name: Gilead Sciences, Inc. v. Merck & Co., Case No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 3263 (N.D. Cal. Jan. 11, 2016)
("The 'compelling need' standard 'usually equates to an inability to prove his case if the material is not made available.'")

Case Date Jurisdiction State Cite Checked
2016-01-11 Federal CA

Chapter: 45.304
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "Wisner [land owner] has produced nothing to rebut BP's evidence that the data underlying the Fitzgerald [Expert] Reports is both Unified Command data generated during the oil spill response and publicly available data; that no field work or additional data gathering was conducted to generate the reports; and that BP has provided Wisner with all of the non-public data underlying these reports pursuant to the Access Agreement and in discovery. Accordingly, Wisner has neither shown a substantial need for the underlying data nor that it cannot obtain the substantial equivalent of the publicly available data from other sources. Wisner has not demonstrated a substantial need for Dr. Fitzgerald's analysis, when it can engage its own experts to evaluate the data to which it has access.")

Case Date Jurisdiction State Cite Checked
2015-11-13 Federal LA

Chapter: 45.304
Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
("What 'substantial need' is depends on the facts and circumstances of the individual case, but it is certainly more than mere tangential relevance to the case. There can be no substantial need for documents or other materials that do not bear on a material fact at issue in the underlying case."; "Here, Plaintiffs do not argue that they have demonstrated the requisite substantial need. In fact, and as accurately pointed out by Defendants, Plaintiffs' memoranda in response to Defendants' motion are entirely silent on the point.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO

Chapter: 45.304
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; analyzing the burden an adversary must overcome to prove "substantial need sufficient to overcome a litigant's work product protection"; "These cases indicate that a moving party's burden is generally met if it demonstrates that the materials are relevant to the case, the materials have a unique value apart from those already in the movant's possession, and 'special circumstances' excuse the movant's failure to obtain the requested materials itself."; "Although each of these cases mentioned the relevance of the requested documents, none articulated a requirement that the documents be essential to the claim or probative of a critical element."; "A moving party need not show, however, that the requested documents are critical to, or dispositive of, the issues to be litigated.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC
Comment:

key case


Chapter: 45.304
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "The Underwoods are key witnesses to the accident and the events leading up to it. Accurate recordings of their recollections are of paramount importance to Galloway's ability to prepare his case. . . . While Galloway can secure the Underwoods' sworn statements at this time through depositions, he will receive their recollections only through the imperfect window of two intervening years. A deposition based on two-year-old memories is not the substantial equivalent of a witness statement taken a week after the incident, especially when Galloway was physically incapable of initiating his own contemporaneous investigations due to his injuries.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.304
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015)
April 22, 2015 (PRIVILEGE POINT)

“District of Columbia Circuit Provides Good News and Bad News in a Work Product Case”

Ironically, federal courts applying the federal work product rule take widely varying positions on a number of key elements, including the protection's duration; its applicability to litigation-related business documents; and the standard under which adversaries can overcome a work product claim.

In FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015), the D.C. Circuit held that: (1) work product "prepared. . . for one lawsuit will retain its protected status even in subsequent, unrelated litigation" (id. at 149); (2) the work product doctrine could protect documents memorializing a business arrangement included as part of adverse companies' litigation settlement agreement, even if the arrangement "has some independent economic value to both parties" — if it was "nonetheless crafted for the purpose of settling litigation" (id. at 150); and (3) an adversary can satisfy the "substantial need" element for overcoming a litigant's work product by demonstrating that the withheld materials "are relevant to the case" and "have a unique value apart from those already in the [adversary's] possession" — without showing "that the requested documents are critical to, or dispositive of, the issues to be litigated." (Id. at 155-56.) The first two holdings represent a broad view of the work product protection, but the third holding makes it easier for adversaries to overcome a company's work product protection.

Other courts take different approaches to all of these issues. Unfortunately, defendant companies often do not know where they will be sued, and therefore will not know in advance what work product standards will apply to documents they may have already created.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 45.304
Case Name: Pinkney v. Winn-Dixie Stores, Inc., Civil Action No.: CV214-075, 2014 U.S. Dist. LEXIS 129604, at *6 (S.D. Ga. Sept. 15, 2014)
("Defendant nonetheless produced to Plaintiff a redacted copy of the incident report, and, to the extent that Plaintiff's Motion seeks an unredacted version, Plaintiff has not shown substantial need and undue hardship with regard to the redacted portions. Given that Plaintiff has the factual portions of the incident report, Plaintiff can adequately prepare her case; Plaintiff does not have a substantial need for the manager's mental impressions and conclusions in order to do so.")

Case Date Jurisdiction State Cite Checked
2014-09-15 Federal GA

Chapter: 45.304
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *10, *10-11 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "Absent any impeachment value, there is no substantial need for the evidence and no undue hardship in their absence."; "Guerra [former Ecuadorian judge who presided over the Ecuadorian lawsuit against Chevron's predecessor] will be a very important witness in this case. If his story is substantially accurate, it necessarily follows that the Ecuadorian judgment is the product of a corrupt bargain. In such circumstances, the Court will not ignore the possibility that sufficient surveillance took place to satisfy the LAP Representatives' [two of 47 Ecuadorian individuals who, with others, obtained a $19 billion judgment against Chevron in Ecuador] burden. It therefore will conduct an in camera inspection of documents sufficient to show the dates and hours, if any, during which Chevron, its attorneys, or any contractors employed by Chevron or its attorneys, had any of Messrs. Zambrano [Equadorian judge], Fajardo [lawyer for Equadorian LAPs], Donziger, Yanza [Equadorian lawyer], and Guerra under physical surveillance in Ecuador during each of the two periods referred to above (i.e., October 1, 2009 through March 12, 2010 and October 1, 2010 through February 14, 2011) and the general locations at which any such instances occurred. Upon review of those materials, which are to be submitted under seal on or before July 12, 2013, the Court will determine whether and to what extent movants have a substantial need for this category of 'ordinary' work product absent which they would suffer undue hardship.")

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 45.304
Case Name: Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH
Comment:

key case


Chapter: 45.304
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR
Comment:

key case


Chapter: 45.304
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that the plaintiffs cannot overcome the work product protection covering WilmerHales' documents; "Plaintiffs claim that they should receive the requested information in any event because they have a substantial need for the materials and will not be able to obtain their substantial equivalent without undue hardship. . . . To the extent Defendants do not intend to introduce the Restructuring Report at trial, however, Plaintiffs have no substantial need for the information for cross-examination purposes."; "Nor have Plaintiffs demonstrated that they cannot obtain the equivalent information without undue hardship. Plaintiffs insist that they cannot recreate the WilmerHale investigation because they are only allowed to take 55 depositions and, thus, cannot depose all of the individuals WilmerHale interviewed. . . . Plaintiffs also lament that witnesses may have forgotten crucial facts and Household may have deleted relevant email messages. . . . Plaintiffs fail to explain, nor does the court see, why they need to depose every WilmerHale interviewee in order to test the law firm's conclusions, especially where Defendants do not intend to make those conclusions part of their defense. . . . Moreover, Plaintiffs have deposed, or have scheduled depositions of nine current or former HMS employees who can testify about the Markell allegations and the conclusions stated in the Restructuring Report. Notably, Plaintiffs have the underlying data KPMG [Household's regular auditor] used to test the accuracy of the Restructuring Report, and the Report itself. Under these circumstances, Plaintiffs have not demonstrated undue hardship for purposes of overcoming the work product privilege.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.304
Case Name: Hawkins v. Norfolk S. Ry., 71 Va. Cir. 285, 290 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "It is true that the adjuster's log is a unique item and contains information which would be difficult for Defendant to otherwise discover; however, Defendant has not demonstrated that it needs the information in the adjuster's log to complete its defense, that the information would be crucial to their case, or that it is especially relevant to their defense. While it might be attenuated for Liberty to claim that Norfolk Southern is trying to gain future advantage in litigation, the Courts are charged with protecting 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Va. Sup. Ct. R. 4:1(b)(3). It appears that Norfolk Southern has not demonstrated anything other than mere curiosity as to what is contained in the adjuster's log; therefore, it has not met its burden of demonstrating substantial need."; ultimately finding that the work product doctrine protected the adjuster's log)

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 45.304
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.305
Case Name: Nadeau v. Wealth Counsel LLC, No. 2:17-cv-00561-MCE-AC, 2018 U.S. Dist. LEXIS 100125 (E.D. Cal. June 14, 2018)
(holding that an employment discrimination investigation was not primarily motivated by legal concerns; "Even if the interview notes were prepared because of litigation, however, disclosure would be appropriate here because plaintiffs have made a persuasive showing of substantial need and inability to otherwise obtain the information. . . . The same is true of the other non-privileged documents identified in the privilege log, assuming arguendo that they satisfy the Rule 26(b)(3) definition of work product. Here the court incorporates by reference its previous discussion of relevance. In sum, Ryan's investigation lies at the heart of plaintiffs' case, which alleges retaliation for statements made during plaintiffs' interviews with Ryan. The factual centrality and probative value of the information easily meets the Upjohn substantial need standard."; "It is equally apparent that the information is not otherwise available to plaintiffs. While the individual plaintiffs were present at their own interviews, they have no other way of knowing what Ryan wrote down or otherwise documented about their statements, how that information was evaluated in light of the investigation as a whole, how it was conveyed to individuals responsible for subsequent adverse employment actions, and the extent to which it was discussed or considered."; "For these reasons, any protection otherwise available under Rule 26(b)(3) is overcome and the non-privileged documents responsive to RFP Nos. 2-7 must be produced.")

Case Date Jurisdiction State Cite Checked
2018-06-14 Federal CA

Chapter: 45.305
Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
(holding that communications with the litigation funder deserved work product protection, which the adversary cannot overcome; "The Court finds that Defendants have not demonstrated that a substantial need exists for the documents at this time. Defendants have not stated that they plan on calling or deposing any of the litigation funders, or that they plan to make an issue of the litigation funding agreements at trial. To the extent that Defendants wish to question Relators about their alleged bias in the case they are free to do so, but Defendants have not presented any credible evidence that demonstrates their need for that documentation at this time.")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX

Chapter: 45.305
Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
("What 'substantial need' is depends on the facts and circumstances of the individual case, but it is certainly more than mere tangential relevance to the case. There can be no substantial need for documents or other materials that do not bear on a material fact at issue in the underlying case."; "Here, Plaintiffs do not argue that they have demonstrated the requisite substantial need. In fact, and as accurately pointed out by Defendants, Plaintiffs' memoranda in response to Defendants' motion are entirely silent on the point.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO

Chapter: 45.305
Case Name: Nevada v. J-M Mfg. Co., 555 F. App'x 782, 785 (10th Cir. 2014)
("A substantial need exists where 'the information sought is essential to the party's defense, is crucial to the determination of whether the defendant could be held liable for the acts alleged, or carries great probative value on contested issues.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 45.305
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *12-13, *13-14 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "American Home, in its denial letter, reserved 'the right to maintain a denial based on other reasons that a continued investigation might reveal.' . . . Accordingly, they argue, American Home has waived any other defenses that it would have been aware of at the time of the issuance of the denial letter but did not then raise."; "Here in order to evaluate the issue of whether American Home waived any of its defenses, the Mosleys have a substantial need for materials that would bear on the issue of what further information was discovered by American Home that would support defenses that would otherwise have been waived in its denial letter and when that information was discovered.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 45.305
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *11 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "The depiction in Defendants' photos of the asbestos-containing items at the Hoechst property is key to one of the essential elements of Plaintiff's prima facie case.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.305
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents."; finding that plaintiffs could overcome any work product protection for materials related to the article; "Plaintiffs will be prejudiced if they are prevented from discovering the data, protocols, process, conduct, discussion, and analyses underlying these studies. A significant expenditure of time and money would be required to duplicate the studies, if they could be exactly duplicated at all, whereas scrutiny of the underlying data may provide a permissible manner in which to attack the findings that would be consistent with the intent of the CMO to minimize the cost of and streamline discovery.")

Case Date Jurisdiction State Cite Checked
2013-06-06 State NY

Chapter: 45.305
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *23 (M.D.N.C. Apr. 30, 2013)
("'Plaintiff has demonstrated a "substantial need" for the requested information based upon its relevance and importance to her claims and the fact that Plaintiff has unsuccessfully (due to Defendants' objections to written discovery and/or at other depositions) tried to obtain the information through other means.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 45.305
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *101 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "'A substantial need for work product materials exists where the information sought is 'essential' to the party's defense, is 'crucial' to the determination of whether the defendant could be held liable for the acts alleged, or carries great probative value on contested issues.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.305
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *10 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "Plaintiffs have not met this burden. They have not argued that without the pictures, they are unable to present a case of either liability or damages. Presumably, if no one had taken any pictures at the scene, plaintiffs would still be able to put on proof that the accident was defendants' fault, and evidence concerning the extent of Mr. Laws' [Plaintiff injured in a truck accident] injuries. Or, put another way, plaintiffs have not proved, or even suggested, that they cannot. The pictures of the rental car might be helpful to their case, but they have not shown that they are 'essential' or 'integral.'")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.305
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *9 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "In order to demonstrate substantial need for them, it is not enough just to say that they contain relevant information. Rather, '[s]ubstantial need is clearly shown when the materials sought are essential to prove the discovering party's case, or where without the information a distinct advantage would accrue to the party having it.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.305
Case Name: Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 290 (Va. Cir. Ct. 2006)
(analyzing work product protection for material prepared by the insurance company for a plaintiff who was involved in an accident with a train; ultimately concluding that the work product doctrine protected the materials, including the adjuster's log, and that the railroad could not overcome the work product protection; explaining that "Liberty produced the photographs and interviews of Plaintiff and eyewitnesses from the adjuster's log, leaving the actual log as the only item not discovered."; "It is true that the adjuster's log is a unique item and contains information which would be difficult for Defendant to otherwise discover; however, Defendant has not demonstrated that it needs the information in the adjuster's log to complete its defense, that the information would be crucial to their case, or that it is especially relevant to their defense. While it might be attenuated for Liberty to claim that Norfolk Southern is trying to gain future advantage in litigation, the Courts are charged with protecting 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Va. Sup. Ct. R. 4:1(b)(3). It appears that Norfolk Southern has not demonstrated anything other than mere curiosity as to what is contained in the adjuster's log; therefore, it has not met its burden of demonstrating substantial need.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA B 12/08

Chapter: 45.305
Case Name: Harris v. Skyhook Corp., 8 Va. Cir. 307, 309, 310 (Richmond 1987)
(finding that the party seeking materials had not proven need although two years had passed since the interviews it unsuccessfully sought).")

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 45.306
Case Name: Ludwig v. USF Holland, Inc., Civ. A. No. 2:2016-CV-44 (JGW), 2017 U.S. Dist. LEXIS 132369 (E.D. Ky. Aug. 18, 2017)
(holding that the possibility that work product protected documents might help in an impeachment effort overcame the work product protection; "Applying that doctrine to this case, Rule 26(b)(3)(A)(ii)'s exception for facts that are essential and not discoverable by other means proves determinative. Schultz is an essential witness to determining whether Amanda Ludwig died immediately when the semi-truck struck her vehicle, or whether she survived and suffered anguish in the ensuing moments. Schultz's visual and auditory perceptions in the moments after the crash provide the insight of a neutral third party on the scene at the critical moment in question. Therefore, there is a substantial need for all parties to have the best statement of Schultz's perceptions possible."; "Defendants certainly have one version of Schultz's perceptions, since Schultz gave deposition testimony. But Schultz's account of the events in his deposition may have differed from his initial recitation of the facts when he spoke with Plaintiff's counsel over the phone and at counsel's office, and when he was closer in time to the events in question. Any even slight dissonance would provide Defendants with an opportunity to impeach Schultz. And, other than obtaining a copy of the transcripts in question, there is no alternative way for Defendants to discover what Schultz said at the time he spoke with Plaintiff's counsel. Depriving Defendants of that transcript would work a substantial hardship on Defendants by removing a potentially essential tool in determining how long the decedent lived after the accident.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal KY

Chapter: 45.306
Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "Rumble [Plaintiff] has the requisite substantial need to discover Nelson's [In-house lawyer for defendant] Notes for at least two reasons. First, the Notes contain "witnesses' initial, unadorned testimony on the key issues,' such as the care Rumble received at Fairview. . . . Second, the Notes "reveal how the witnesses' testimony and recollections may have changed over time.'. . . Thus, the Notes 'are unique sources of both affirmative evidence and impeachment material for which there is no substitute.'")

Case Date Jurisdiction State Cite Checked
2016-08-29 Federal MN

Chapter: 45.306
Case Name: Delmonico v. A.O. Smith Corp. (In re Asbestos Litig.), C.A. No. PC-14-2901, 2016 R.I. Super. LEXIS 9, at *9 (R.I. Super. Ct. Jan. 22, 2016)
(finding that plaintiff's affidavit about asbestos exposure deserved work product protection, and holding after an in camera review of the withheld documents that the defendant could not overcome the work product doctrine on the grounds that the affidavit might provide impeachment material; "Although Defendant claims substantial need based on the potential for impeachment evidence, the Court can reassure Defendant that the exposure affidavits and the answer to interrogatory number six are nearly identical, and thus there is no impeachment evidence to be found.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal RI B 7/16

Chapter: 45.306
Case Name: Delmonico v. A.O. Smith Corp. (In re Asbestos Litig.), C.A. No. PC-14-2901, 2016 R.I. Super. LEXIS 9, at *9-10, *10 (R.I. Super. Ct. Jan. 22, 2016)
(finding that plaintiff's affidavit about asbestos exposure deserved work product protection, and holding after an in camera review of the withheld documents that the defendant could not overcome the work product doctrine on the grounds that the affidavit might provide impeachment material; "The Court is also satisfied that nondisclosure of the exposure affidavits will not impose undue hardship on Defendant. . . . [B]ecause the answer to interrogatory number six was provided to Defendant prior to the seven days of deposition, Defendant had ample opportunity to cross-examine Mr. Delmonico with this information."; "[There was] a timespan of less than five months between the creation of the exposure affidavits and the end of the deposition testimony (not including the later videotaped trial deposition). This close timeline, as well as a lack of evidence about the impairment of Mr. Delmonico's mental faculties during this timeline, allays concerns about the exposure affidavits capturing a 'snapshot' of Mr. Delmonico's memory.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal RI B 7/16

Chapter: 45.306
Case Name: Nichol v. City of Springfield, No. 6:14-cv-1983-AA, 2015 U.S. Dist. LEXIS 169901 (D. Ore. Dec. 18, 2015)
(finding that plaintiff's friend could create protected work product even though the friend was not the plaintiff's "representative"; "[D]efendants assert a substantial need for the documents for the purposes of impeachment. However, they fail to point to any contradictory statements on core issues in the case -- for example, they do not assert the Umenhofer [Plaintiff's friend who had also been terminated by the police department and also filed a lawsuit against the same defendants] Documents show plaintiff has changed her story regarding the fact, timing, or extent of any disclosures. Defendants give a single example of the Umenhofer Documents' purported impeachment value: they point to plaintiff's deposition testimony that Umenhofer did not give her advice regarding this lawsuit.")

Case Date Jurisdiction State Cite Checked
2015-12-18 Federal OR

Chapter: 45.306
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
("Therefore, the Borst transcript is not discoverable unless Plaintiff can demonstrate that he has a substantial need for the transcript, which he has failed to do. Plaintiff contends that he needs the transcript 'both for possible impeachment purposes and to explore the basis for any purported change of views on Mr. Borst's part.'. . . But the mere need for possible impeaching material is not sufficient to allow discovery of attorney work product.")

Case Date Jurisdiction State Cite Checked
2015-03-03 Federal IL

Chapter: 45.306
Case Name: U.S. Equal Employment Opportunity Comm. v. Pioneer Hotel, Inc., Case No. 2:11-cv-01588-LRH-GWF, 2014 U.S. Dist. LEXIS 142735 (D. Nev. Oct. 6, 2014)
(finding that the EEOC's solicitation letters to a company's employees met part of the work product doctrine standard, but did not amount to opinion work product, and had not taken steps to keep the solicitation letters out of the company's hands; concluding that the EEOC's solicitation letters to a company's employees might have amounted to protected work product, but that the company could overcome the protection; "The Defendant has substantial need for the letter for impeachment. It cannot obtain the same by other means. The Court therefore finds that this letter is not entitled to protection under the work-product doctrine.")

Case Date Jurisdiction State Cite Checked
2014-10-06 Federal NV

Chapter: 45.306
Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal LA
Comment:

key case


Chapter: 45.306
Case Name: Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY
Comment:

key case


Chapter: 45.306
Case Name: Colon v. The City of New York, 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483, at *9 (S.D.N.Y. July 8, 2014)
(holding that a completed but never-filed affidavit deserved work product protection, but that the defendant could overcome the protection because the affidavit had been prepared much earlier; "The affidavits, dated 1999, contain factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990. Because of the length of time that has passed, and because Defendants may wish to use these materials to impeach Plaintiff -- perhaps the most critical witness in this case -- the Court finds that Defendants have met their burden needed to overcome any work-product protection.")

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY

Chapter: 45.306
Case Name: Clemmons v. Acad. for Educ. Dev., Civ. A. No. 10-cv-911 (RC), 2013 U.S. Dist. LEXIS 161586, at *5-6 (D.D.C. Nov. 13, 2013)
(analyzing work product protection for draft witness declarations; ultimately finding opinion work product protection that the adversary could not overcome; "The materials concerning Ms. Shillingi [third-party witness] are a closer call because she is, apparently, unavailable for deposition. However, because Defendant seeks this information for purposes of impeachment of the allegations contained in the final version of the declaration, it has not demonstrated substantial need for these materials either.")

Case Date Jurisdiction State Cite Checked
2013-11-13 Federal DC B 5/14

Chapter: 45.306
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *10, *10-11 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "Absent any impeachment value, there is no substantial need for the evidence and no undue hardship in their absence."; "Guerra [former Ecuadorian judge who presided over the Ecuadorian lawsuit against Chevron's predecessor] will be a very important witness in this case. If his story is substantially accurate, it necessarily follows that the Ecuadorian judgment is the product of a corrupt bargain. In such circumstances, the Court will not ignore the possibility that sufficient surveillance took place to satisfy the LAP Representatives' [two of 47 Ecuadorian individuals who, with others, obtained a $19 billion judgment against Chevron in Ecuador] burden. It therefore will conduct an in camera inspection of documents sufficient to show the dates and hours, if any, during which Chevron, its attorneys, or any contractors employed by Chevron or its attorneys, had any of Messrs. Zambrano [Equadorian judge], Fajardo [lawyer for Equadorian LAPs], Donziger, Yanza [Equadorian lawyer], and Guerra under physical surveillance in Ecuador during each of the two periods referred to above (i.e., October 1, 2009 through March 12, 2010 and October 1, 2010 through February 14, 2011) and the general locations at which any such instances occurred. Upon review of those materials, which are to be submitted under seal on or before July 12, 2013, the Court will determine whether and to what extent movants have a substantial need for this category of 'ordinary' work product absent which they would suffer undue hardship.")

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 45.306
Case Name: Chesapeake Energy Corp. v. Bank of N.Y. Mellon Trust Co., N.A., No. 13 Civ. 1582 (PAE), 2013 U.S. Dist. LEXIS 55077, at *16 (S.D.N.Y. Apr. 15, 2013)
("BNY's speculative fear that limiting Chesapeake's privilege waiver to communications before February 22, 2013, would allow Chesapeake to use privileged materials as both a sword and a shield does not have a basis in fact. Chesapeake has represented that it does not intend to offer into evidence any privileged documents created following the closing of the offering. . . . And, based on the Court's review, none of those documents would appear to be probative and admissible to advance Chesapeake's cause. Thus, BNY has failed to demonstrate that it would suffer prejudice unless these materials were produced, a showing necessary to justify invading Chesapeake's work-product privilege.")

Case Date Jurisdiction State Cite Checked
2013-04-15 Federal NY B 3/14

Chapter: 45.306
Case Name: SEC v. Nadel, No. CV 11-215 (WFK) (AKT), 2013 U.S. Dist. LEXIS 36251, at *4, *5, *7, *8 (E.D.N.Y. Mar. 15, 2013)
("A party seeking to compel disclosure of interview notes must, at a minimum, show that the interviewees are not available for questioning."; "Here, Defendants had the opportunity to depose all of the witnesses in the case. Although Defendants argue that these witnesses 'fail[ed] to testify about the substance of their interviews'. . . it is the witnesses' recollection of the operative facts and circumstances of the case that is relevant, not their ability to recall the specifics of after-the-fact interviews. Defendants do not identify any relevant facts that the witnesses could not provide at their depositions. All of the examples provided pertain to the interviews themselves, not the underlying facts of the case. . . . Because Defendants do not identify a particular area of inquiry upon which the witnesses could not provide testimony, Defendants have not made the required highly persuasive showing. Indeed, Defendants have not even satisfied the more lenient 'substantial need' standard."; "The witnesses have not invoked their Fifth Amendment privilege, nor have Defendants been denied access to the witnesses' information in any other way."; "In the instant case, the witness depositions have not suggested any inconsistencies or gaps in memory with respect to relevant information. It bears repeating that the interviews themselves are not relevant -- only the factual information recounted in the interviews is relevant. Moreover, other courts have held that the the [sic] desire to use work product for impeachment purposes does not constitute 'substantial need.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.306
Case Name: Burtch v. Luminescent Sys., Inc. (In re AE Liquidation, Inc.), Ch. 7 Case No. 08-13031 (MFW), Adv. Nos. 10-55460 & -55384 (MFW), 2012 Bankr. LEXIS 5710, at *11-12 (Bankr. D. Del. Dec. 11, 2012)
("The only reason asserted by the Trustee in this case for discovery of the documents is for use in impeaching the witnesses in depositions and at trial. The possibility of use for impeachment alone does not meet the standard of substantial need required to overcome the attorney work product protection." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-12-11 Federal DE B 9/13

Chapter: 45.306
Case Name: United States v. Halliburton, 266 F.R.D. 130, 132, 133 (E.D. Va. 2010)
(finding that a relator's disclosure statement to the government deserved ordinary work product protection acknowledging "the disagreement of various jurisdictions on the appropriate classification of disclosure statement[s]"; ultimately concluding that the statement deserved ordinary work product; finding that defendant could not overcome the work product protection either because they needed to impeach the relator or because they could obtain a substantial equivalent information elsewhere; "Defendants first argued that they had a 'substantial need' for the Statement to impeach Relator and that they could not obtain 'substantial[ly] equivalent' information elsewhere. In this District, 'the mere surmise that production might reveal impeaching matter [is] not sufficient to justify production' and the seeking 'party must present more than speculative or conclusory statements.'"; "Defendants had ample opportunity examine the Relator regarding the origins of his 'time sheet' allegations, his knowledge regarding the alleged falsification of time sheets, to whom he reported those allegations prior to filing the original Complaint, elicited the names of additional individuals who might have knowledge of any potential fabrication on the part of Relator, and asked a number of other questions in an effort to impeach his credibility. For example, Relator testified that prior to filing his Complaint he spoke with Senate employee named Neil Higgins . . . as well as Dina Rasor and Bob Bauman . . . . These individuals could be deposed regarding the origins of Relator's claims. In light of this, Defendants have not demonstrated both a 'substantial need' for the Statement or an inability to obtain 'substantially equivalent' information contained therein for purposes of impeachment. The ordinary work product protection thus bars discovery of the Statement unless Defendants other arguments prevail.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 45.306
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *8-9, *14, *15, *15-16 (E.D. Va. Sept. 14, 2009)
(addressing plaintiff's argument that it could overcome the state's work product protection for witness statements taken approximately one month after decedent died at a state-owned hospital; "Thus, discovery of fact work product is permitted, but a party seeking disclosure must demonstrate that its need is truly substantial, and that there is no reasonable substitute for the documents they seek. If other discovery materials provide substantially equivalent information to that which is privileged, and the Plaintiffs cannot otherwise substantiate their need, the showing is not met. If this showing were unnecessary, the inquiry would be reduced to a simple question of relevance, and the category labeled 'fact work product not subject to disclosure' would be rendered a null set. Precedent does not appear to intend such a result. Still, the Fourth Circuit has described the qualified immunity for fact work product as 'little more than an "anti-freeloader" rule,' National Union, 967 F.2d at 985 [National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 (4th Cir. 1992)]; the seeking party's burden is not terribly demanding."; "A non-exhaustive list of factors to be assessed in determining substantial need includes: (1) importance of the materials to the party seeking them for case preparation; (2) the difficulty the party will have obtaining them by other means; and (3) the likelihood that the party, even if he obtains the information by independent means, will not have the substantial equivalent of the documents he seeks. Fed. R. Civ. P. 26, advisory committee's note, 1970 Amendments. The committee then notes that '[c]onsideration of these factors may well lead the court to distinguish between witness statements taken by an investigator, on the one hand, and other parts of the investigative file, on the other.' Id."; inexplicably holding that witness memoranda prepared after the accident did not deserve opinion work product protection; holding that plaintiff could overcome the state's work product claim; "In assessing the adequacy of depositions as substitutes for the requested documents, the Plaintiffs identify several deponents' memory failures and testimonial inconsistencies with specificity. They highlight the issues that depositions left unclear but the requested documents may illuminate. They have made an individualized case for substantial need for six of the ten requested documents, which will now be assessed." (footnote omitted); "The Plaintiffs have shown inconsistencies between Nurse Brown's depositions testimony and other evidence on the record. The inconsistencies relate to how continuously she remained by the decedent's bedside on the night in question, whether she or another nurse administered medications to the decedent, and whether she sat on a mattress atop decedent to hold him down during the incident."; "[T]he alleged inconsistencies between her deposition testimony and evidence on the record are substantial and meaningful to the Plaintiffs' case. The centrality of Ms. Brown's role, combined with the evident incompatibility of her deposition testimony with hospital records, suggests (though it does not necessarily mean) that Document 18 may assist the Plaintiffs (as it may already be assisting the Defendants) in developing a more complete picture of material events. It could also strengthen the Plaintiffs' case by providing material to impeach Nurse Brown's credibility. See Duck v. Warren, 160 F.R.D. 80 (E.D. Va. 1995).")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA N 3/10

Chapter: 45.306
Case Name: Webb v. Joiner, 71 Va. Cir. 254, 255 (Va. Cir. Ct. 2006)
(assessing defendant doctor's motion seeking the return of a handwritten memorandum prepared by the doctor and included in the plaintiff's medical record, which was made available to the plaintiff; noting the doctor claimed that the attorney-client privilege protected the memorandum, that it was accidentally produced and should be returned; assuming without deciding that the attorney-client privilege covered the memorandum, and noting that the work product doctrine also covered the memorandum; nevertheless declining to order its return, because of the crime-fraud exception; "In this case, defendant physician's testimony at his deposition concerning matters surrounding the alleged malpractice was different from the actions he described in the handwritten memo to his insurance carrier. The obvious conclusion is that the defendant physician either made, or appeared to have made, a material misrepresentation of fact with intent to mislead. The making, or just the appearance of making, an intentional misrepresentation with intent to mislead, during or in contemplation of litigation, is not protected by the rules regarding privileged communications or the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA B 3/08

Chapter: 45.306
Case Name: Haugh v. Schroder Investment Management North Am. Inc., 02 Civ. 7955 (DLC), 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003)
(holding that a public relations consultant could not claim privilege protection for her documents but could claim work product protection; "This motion concerns the involvement of Laura J. Murray ('Murray'), a public relations consultant who is also a lawyer licensed to practice I n the state of Texas. Plaintiff's former counsel, Arkin Kaplan LLC ('Arkin'), retained Murray in September 2002, and sent Murray a formal retention letter on October 3, 2002. The retention letter states that Murray will 'provide us advice to assist us in providing legal services to Ms. Haugh.' The letter provided that Murray would look only to Haugh for payment. It included the following statement regarding confidentiality: 'You further understand that our communications with you are confidential and privileged.'"; "All of the documents submitted in conjunction with this motion are covered by the work product privilege, as they were all prepared by a party, her agent, attorney or consultant in anticipation of litigation. Defendants have articulated a substantial need only for documents that would tend to contradict Haugh's statement that her termination on May 9, 2002 came as a surprise.")

Case Date Jurisdiction State Cite Checked
2003-08-25 Federal NY

Chapter: 45.306
Case Name: McCormick v. White, No. 4:97cv44, slip op. at 19 (E.D. Va. Aug. 14, 1997)
("The Court finds that a need for additional impeachment material does not satisfy the substantial need requirement of Fed. R. Civ. P. 26(b)(3) given the circumstances of this case. As previously stated, there were several statements given by White following the accident. McCormick may use White's statements given to the National Park Service Police to attempt impeachment. He may also ascertain what White told his minister, the hospital chaplain, and his family members concerning the accident. Each of these is more contemporaneous, and arguably more reliable, than the statement given to USF&G.")

Case Date Jurisdiction State Cite Checked
1997-08-14 Federal VA

Chapter: 45.306
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42, 45 (Va. Cir. Ct. 1997)
(holding that the plaintiff had established her inability "without undue hardship, to obtain a substantial equivalent" of the defendant's post-accident statement to her insurer; noting that the plaintiff had established the need to obtain statements of witnesses taken immediately after the accident; "These statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment."; rejecting a "bright line test" for the discoverability of insurance statements; finding the work product protection applied but was overcome by the plaintiff's substantial need for the statements)

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.306
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42 (Va. Cir. Ct. 1997)
(holding that the plaintiff had established her inability "without undue hardship, to obtain a substantial equivalent" of the defendant's post-accident statement to her insurer; noting that the plaintiff had established the need to obtain statements of witnesses taken immediately after the accident; "[t]hese statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.306
Case Name: Duck v. Warren, 160 F.R.D. 80, 82-83 (E.D. Va. 1995)
(holding that "substantial need" sufficient to overcome work product protection includes the requirement to impeach a witness, as long as the party seeking the information provides more than "speculative or conclusory statements" that the information will impeach the witness, and proves that the impeachment value is "substantial")

Case Date Jurisdiction State Cite Checked
1995-01-01 Federal VA

Chapter: 45.307
Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "Rumble [Plaintiff] has the requisite substantial need to discover Nelson's [In-house lawyer for defendant] Notes for at least two reasons. First, the Notes contain "witnesses' initial, unadorned testimony on the key issues,' such as the care Rumble received at Fairview. . . . Second, the Notes "reveal how the witnesses' testimony and recollections may have changed over time.'. . . Thus, the Notes 'are unique sources of both affirmative evidence and impeachment material for which there is no substitute.'")

Case Date Jurisdiction State Cite Checked
2016-08-29 Federal MN

Chapter: 45.307
Case Name: Carlin v. Dairy America, Case No. 1:09-cv-430 AWI-EPG, 2016 U.S. Dist. LEXIS 108737 (E.D. Cal. Aug. 16, 2016)
(holding that defendant's spreadsheet about possible damages was not privileged, but deserved work product protection which the plaintiff could overcome; declining to allow the inadvertently produced spreadsheet to be clawed-back by the defendant; "Notwithstanding the above, the Court finds that the spreadsheet contains data that are highly relevant to the Plaintiffs' assessment of liability and damages, and are not available through other means. Even though the data in this spreadsheet do not appear to have been reported to NASS, they are highly relevant to computation of damages during that time period. Moreover, Dairy America's inability to re-create the underlying factual data contained in the disputed spreadsheet establishes that the data are not otherwise available, or at the very least that an undue hardship exists in obtaining substantially equivalent information."; "Accordingly, Defendant's request to clawback the document based on attorney work product is denied. Plaintiffs may use the spreadsheet in the course of this litigation, however, the exact scope of its use will be determined by Judge Ishii at the time of trial.")

Case Date Jurisdiction State Cite Checked
2016-08-16 Federal CA

Chapter: 45.307
Case Name: Pemberton v. Republic Services, Inc., Case No. 4:14-cv-01421 AGF, 2015 U.S. Dist. LEXIS 81063 (E.D. Mo. June 23, 2015)
("What 'substantial need' is depends on the facts and circumstances of the individual case, but it is certainly more than mere tangential relevance to the case. There can be no substantial need for documents or other materials that do not bear on a material fact at issue in the underlying case."; "Here, Plaintiffs do not argue that they have demonstrated the requisite substantial need. In fact, and as accurately pointed out by Defendants, Plaintiffs' memoranda in response to Defendants' motion are entirely silent on the point.")

Case Date Jurisdiction State Cite Checked
2015-06-23 Federal MO

Chapter: 45.307
Case Name: United States v. Tailwind Sports Corp., Case No. 1:10-cv-00976 (CRC), 2015 U.S. Dist. LEXIS 4610 (D.D.C. Jan. 12, 2015)
(analyzing bicyclists Floyd Landis's qui tam action against Lance Armstrong, concluding that government agents' witness interview memoranda from the civil investigation deserved opinion work product protection, but that similar witness interview memoranda prepared during the government's criminal investigation deserved only fact work product protection, which Armstrong could overcome; "The Court previously ruled that Armstrong has demonstrated a substantial need for any law enforcement memoranda created during the now-closed criminal investigation that contain relevant fact work product only. . . . The Court explained that because the civil lawyers litigating this qui tam action have received a substantial advantage from having access to the fruits of the prior criminal investigation, fairness dictates that both sides have equal access to relevant witness statements developed by law enforcement in the prior criminal investigation. Id.")

Case Date Jurisdiction State Cite Checked
2015-01-12 Federal DC

Chapter: 45.307
Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "The document includes statements made by Michael Donnelly, and thus constitutes factual work product. Further, in part because Donnelly is a defendant in this action, Plaintiff has a substantial need for his statements.")

Case Date Jurisdiction State Cite Checked
2014-11-14 Federal NY

Chapter: 45.307
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *11 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "The depiction in Defendants' photos of the asbestos-containing items at the Hoechst property is key to one of the essential elements of Plaintiff's prima facie case.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.307
Case Name: Cosmetic Warriors Ltd. v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *9 n.4 (D.N.J. Oct. 4, 2013)
(not for publication) (analyzing the work product doctrine's duration; explaining that plaintiff's lawyer discovered defendant's alleged trademark violation while investigating another possible infringer; concluding that the current lawsuit was not sufficiently related to the other litigation in which the lawyer discovered the possible infringement, so the work product doctrine did not protect his documents; indicating that the court would find that defendant could overcome any work product protection if the work product doctrine applied; "'The disputed information is largely factual, and does not constitute attorney opinion relating to the merits of this case. LDS requires a full disclosure of facts in order to support its claims and defenses that would likely outweigh any protection that arguably could attach.'")

Case Date Jurisdiction State Cite Checked
2013-10-04 State NJ B 5/14

Chapter: 45.307
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents."; finding that plaintiffs could overcome any work product protection for materials related to the article; "Plaintiffs will be prejudiced if they are prevented from discovering the data, protocols, process, conduct, discussion, and analyses underlying these studies. A significant expenditure of time and money would be required to duplicate the studies, if they could be exactly duplicated at all, whereas scrutiny of the underlying data may provide a permissible manner in which to attack the findings that would be consistent with the intent of the CMO to minimize the cost of and streamline discovery.")

Case Date Jurisdiction State Cite Checked
2013-06-06 State NY

Chapter: 45.307
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *18 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Cuban has a substantial need for this information because the investigation of Mamma.com took place during a critical time period for this case, and the persons interviewed are likely to have relevant information that bears directly on the merits of the SEC's case.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.307
Case Name: Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH
Comment:

key case


Chapter: 45.307
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR
Comment:

key case


Chapter: 45.307
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *18-19 (E.D. Va. Sept. 14, 2009)
("Because Dr. Cost is not a party, and does not appear to be a witness to the events that caused decedent's death, the 'unique catalyst' language of National Union, 967 F.2d at 985 [National Union Fire Insurance Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980 (4th Cir. 1992)], which assessed post-incident interviews of 'either the parties or witnesses,' does not clearly apply. The Plaintiffs' strongest need for Dr. Cost's interview appears to be demonstrating that a prescription of Haldol was bad for someone in the decedent's condition, which could probably be established through expert testimony. However, as evidence of internal conflict within the hospital, confirmation that Dr. Cost was indeed the as-of-yet unidentified doctor could strengthen the Plaintiffs' case. And Dr. Cost's specific role as resident in charge of the decedent's care means that the interview may reveal yet other information material to the Plaintiffs' case. Although it is perhaps the closest question of any of the documents, the Plaintiffs appear to have met their burden to demonstrate substantial need, and Document 24 must be produced. Though it is less central to the Plaintiffs' complaint, it is material, and there is simply no substantial equivalent of an interview taken four days after decedent died.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.307
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *13-14 n.10 (W.D. Va. Apr. 16, 2009)
("Though not necessary to its determination, the court also finds that even if work product protection applied to documents created before October 2, 2007, Schwarz would still be entitled to them because of 'substantial need.' Fed. R. Civ. P. 26(b)(3)(A)(ii). Schwarz seeks discovery as to when and why Lloyd's decided to disclaim coverage, which is relevant to Schwarz's claims for declaratory judgment, breach of contract, and bad faith. That Schwarz will have the opportunity to depose employees of Lloyd's as well as Lloyd's agents (see supra note 3) does not mean that Schwarz will be able to obtain the 'substantial equivalent [to the documents] by other means.' Id. To the contrary, these documents will be critical for noticing, preparing for, and guiding any such depositions.")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 45.307
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.307
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.") [Byrd, J.]

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.307
Case Name: In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207, 1215 (E.D. Va. 1990)
("Similar circumstances in the case at bar warrant the same result. The interviews in issue here were conducted approximately two years ago and concerned events occurring as much as six years ago. These interviews would surely constitute the most accurate and the principal, if not sole, source of evidence of Movant's state of knowledge in 1984 and thereafter. Surely the passage of six years has faded, if not wholly erased, most memories. . . . [T]he Court will conduct an in camera inspection of these interview documents prior to ordering disclosure. As a result of this inspection, the Court may order appropriate redactions to protect against any unwarranted or unnecessary disclosure of attorneys' mental processes."), aff'd in part and vacated in part on other grounds, 902 F.2d 244 (4th Cir. 1990)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal VA

Chapter: 45.308
Case Name: United States v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967 (E.D. Tex. March 15, 2016)
(holding that communications with the litigation funder deserved work product protection, which the adversary cannot overcome; "The Court finds that Defendants have not demonstrated that a substantial need exists for the documents at this time. Defendants have not stated that they plan on calling or deposing any of the litigation funders, or that they plan to make an issue of the litigation funding agreements at trial. To the extent that Defendants wish to question Relators about their alleged bias in the case they are free to do so, but Defendants have not presented any credible evidence that demonstrates their need for that documentation at this time.")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX

Chapter: 45.308
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; analyzing the burden an adversary must overcome to prove "substantial need sufficient to overcome a litigant's work product protection"; "These cases indicate that a moving party's burden is generally met if it demonstrates that the materials are relevant to the case, the materials have a unique value apart from those already in the movant's possession, and 'special circumstances' excuse the movant's failure to obtain the requested materials itself."; "Although each of these cases mentioned the relevance of the requested documents, none articulated a requirement that the documents be essential to the claim or probative of a critical element."; "A moving party need not show, however, that the requested documents are critical to, or dispositive of, the issues to be litigated.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC
Comment:

key case


Chapter: 45.308
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015)
April 22, 2015 (PRIVILEGE POINT)

“District of Columbia Circuit Provides Good News and Bad News in a Work Product Case”

Ironically, federal courts applying the federal work product rule take widely varying positions on a number of key elements, including the protection's duration; its applicability to litigation-related business documents; and the standard under which adversaries can overcome a work product claim.

In FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015), the D.C. Circuit held that: (1) work product "prepared. . . for one lawsuit will retain its protected status even in subsequent, unrelated litigation" (id. at 149); (2) the work product doctrine could protect documents memorializing a business arrangement included as part of adverse companies' litigation settlement agreement, even if the arrangement "has some independent economic value to both parties" — if it was "nonetheless crafted for the purpose of settling litigation" ( id. at 150); and (3) an adversary can satisfy the "substantial need" element for overcoming a litigant's work product by demonstrating that the withheld materials "are relevant to the case" and "have a unique value apart from those already in the [adversary's] possession" — without showing "that the requested documents are critical to, or dispositive of, the issues to be litigated." (Id. at 155-56.) The first two holdings represent a broad view of the work product protection, but the third holding makes it easier for adversaries to overcome a company's work product protection.

Other courts take different approaches to all of these issues. Unfortunately, defendant companies often do not know where they will be sued, and therefore will not know in advance what work product standards will apply to documents they may have already created.

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal
Comment:

key case


Chapter: 45.308
Case Name: Nevada v. J-M Mfg. Co., 555 F. App'x 782, 785 (10th Cir. 2014)
("Potential attacks on the credibility of independent testing done in preparation for litigation are not sufficient to show a substantial need for an opposing party's test results. If we were to hold otherwise, this justification could conceivably apply to all tests conducted by parties in anticipation of litigation and would discourage parties from engaging in independent testing.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 45.308
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *10 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "Plaintiffs have not met this burden. They have not argued that without the pictures, they are unable to present a case of either liability or damages. Presumably, if no one had taken any pictures at the scene, plaintiffs would still be able to put on proof that the accident was defendants' fault, and evidence concerning the extent of Mr. Laws' [Plaintiff injured in a truck accident] injuries. Or, put another way, plaintiffs have not proved, or even suggested, that they cannot. The pictures of the rental car might be helpful to their case, but they have not shown that they are 'essential' or 'integral.'")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.308
Case Name: Tela Hansom Pitt v. Hughes, CL12000260 00, Va. Law. Wkly. 012 8 144 (Prince William Cir. Ct. Sept. 21, 2012)
(holding that the work product doctrine protected documents reflecting communications between an insurance company and its insured after an accident, and that the plaintiff could not overcome the work product protection covering the insured's interviews noting the insured's guilty plea to a traffic infraction but current denial of liability in the follow on civil case; "The need is articulated in the memorandum accompanying the motion to compel: The interview may contain admissions or contradictions, made shortly after the accident, which will help explain what plaintiff regards as a reversal of position on the issue of liability -- defendant pled guilty to a traffic infraction, but now contests liability, and plaintiff has no other way to obtain these admissions, or indeed to obtain explanation of the reversal. I do not find this qualifies as substantial need. Questions and answers as to facts bearing on liability are precisely what the work product doctrine protects. The fact that a person may have made statements of fact bearing upon liability which the opposition would like to inspect for prior inconsistent statements, where liability is contested, does not create a special need. If it did, statements of this sort would be discoverable in every case of contested liability, as such statements are routinely taken shortly after accidents, and lawsuits are heard much later, when memories arguably have faded, or opportunity to reflect and concoct new stories has occurred.")

Case Date Jurisdiction State Cite Checked
2012-09-21 State VA B 3/13

Chapter: 45.308
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *12 (E.D. Va. July 18, 2011)
(finding that plaintiff could not overcome defendant's work product protection; "The Court overrules Plaintiff's objection claiming that MWV has a substantial need for the information. First, the materials at issue are not important in light of the information that Rexam has already provided to MWV. Plaintiff acknowledges that 'the sole issue to be decided . . . is whether Rexam's V2 tube has a crystalline content of less than about [thirteen percent].'. . . Rexam has produced the XRD testing that it plans to rely on a trial. UMinn and Bruker's information is not the only material that could determine whether Rexam's tube infringes on MWV's patent. Rather, MWV's own tests, their own experts, the opportunity to cross examine Rexam's testifying expert, and the possession of Rexam's products which infringe on the patent, are the substantial equivalent, if not better, indicators of whether Rexam is liable. Accordingly, the information is not important, and Plaintiff fails to meet the first Sanford [Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979 (E.D. Va. Sept. 14, 2009)] factor.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.308
Case Name: Hawkins v. Norfolk S. Ry. Co., 71 Va. Cir. 290 (Va. Cir. Ct. 2006)
(analyzing work product protection for material prepared by the insurance company for a plaintiff who was involved in an accident with a train; ultimately concluding that the work product doctrine protected the materials, including the adjuster's log, and that the railroad could not overcome the work product protection; explaining that "Liberty produced the photographs and interviews of Plaintiff and eyewitnesses from the adjuster's log, leaving the actual log as the only item not discovered."; "It is true that the adjuster's log is a unique item and contains information which would be difficult for Defendant to otherwise discover; however, Defendant has not demonstrated that it needs the information in the adjuster's log to complete its defense, that the information would be crucial to their case, or that it is especially relevant to their defense. While it might be attenuated for Liberty to claim that Norfolk Southern is trying to gain future advantage in litigation, the Courts are charged with protecting 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Va. Sup. Ct. R. 4:1(b)(3). It appears that Norfolk Southern has not demonstrated anything other than mere curiosity as to what is contained in the adjuster's log; therefore, it has not met its burden of demonstrating substantial need.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA B 12/08

Chapter: 45.308
Case Name: Falls v. Williams Dairy, Inc., 42 Va. Cir. 101, 102 (Va. Cir. Ct. 1997)
(addressing work product protection for witness statements prepared in a third party insurance context; finding that defendant's insurance adjuster took witness statements after a farm accident; finding that the statements deserved work product protection, and that plaintiff could not overcome the protection; "Upon being advised that the Plaintiffs' decedent died after falling into a manure pit on the Defendant's farm, an insurance adjuster could reasonably foresee litigation for wrongful death. Given the litigious nature of today's society, if insurance coverage is involved and a death is anything other than natural, then it is reasonably foreseeable that litigation will occur. Hence, any witness statements taken by the Defendant's insurance adjuster were taken in anticipation of litigation."; "During argument, Mr. Love presented nothing to show a substantial need for such statements. He mentioned inconsistent statements as a possibility, but he offered nothing to indicate that inconsistent statements may exist.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 12/09

Chapter: 45.308
Case Name: Malone v. Ford Motor Co., 29 Va. Cir. 456, 459 (Va. Cir. Ct. 1992)
(denying plaintiff's request that Ford produce a master list of bates numbers covering approximately forty thousand pages of documents in a repository; "The mere possibility that a party might not produce all relevant, unprotected documents, is not a sufficient basis for ordering such a party to disclose its entire computerized system of information management. Nor should the possibility that a lawyer could better frame his discovery requests serve as a sufficient predicate for ordering disclosure of proprietary information about a computer system. Accordingly, absent a showing that the Defendant has failed to respond adequately and in good faith to discovery requests, that request for production of the database must be denied. There is no showing that conventional discovery, while perhaps more burdensome and costly, has failed to produce the information desired by the Plaintiffs." (quoting Lawyers Title Ins. Corp. v. United States Fid. & Guar. Co., 122 F.R.D. 567, 570 (N.D. Cal. 1988)); it would not be a 'hardship' for the plaintiff to review the forty thousand pages)

Case Date Jurisdiction State Cite Checked
1992-01-01 State VA

Chapter: 45.402
Case Name: United States v. Ormat Industries, Ltd., 3:14-cv-00325-RCJ-VPC, 2015 U.S. Dist. LEXIS 171802 (D. Nev. Dec. 23, 2015)
("Irrespective of whether Ormat has shown a substantial need, it has failed to demonstrate that other means of discovery are inadequate. Unlike in Stone, trial is still more than a year away, providing Ormat with 'ample opportunity over the course of the next several months to discover, with specificity, the facts and individuals most important to [its] case.'. . . Ormat has yet to depose Relators.")

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV
Comment:

key case


Chapter: 45.402
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "It is settled in the Fourth Circuit that a document must have been prepared 'because of' the potential for litigation in order to be protected by the work-product doctrine. . . . Materials that are prepared in the 'ordinary course of business' or for other non-litigation purposes are not considered to have been prepared in the anticipation of litigation, even if litigation is anticipated. . . . Finally, if a document is prepared in anticipation of litigation but does not contain mental impressions that document may be discoverable upon a demonstration of substantial need and an inability to obtain the information in the document without undue burden.")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 45.402
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(finding that work product protection covered materials collected by defendant's insurance company in anticipation of litigation; quoting another court in explaining that "`the substantial need prong examines: 1) whether the information is an essential element in the requesting party's case, and 2) whether the party requesting discovery can obtain the facts from an alternate source.'" (citation omitted); finding that a loss activity report about plaintiff's driving record collected by the defendant's insurance company is not important for plaintiff's case and could be collected by plaintiff without undue hardship)

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.403
Case Name: Cooper v. Richland County Recreation Comm., Civ. A. No. 3:16-cv-1606-MGL-TER, 2018 U.S. Dist. LEXIS 163788 (D.S.C. Sept. 25, 2018)
(applying work product protection to an investigation into sexual harassment allegations; "Here, Defendants provided the names of the witnesses interviewed by Edwards in their discovery responses. Plaintiff fails to show a substantial need or an undue hardship in obtaining the facts collected by Edwards during her investigation. In sum, Defendants have shown that the documents requested by Plaintiff are protected from disclosure by the work product doctrine, and Plaintiff has failed to present evidence sufficient to establish an exception to this doctrine.")

Case Date Jurisdiction State Cite Checked
2018-09-25 Federal SC

Chapter: 45.403
Case Name: Leakey v. The Setai Group LLC, 151298/2014, 2017 N.Y Misc. LEXIS 3215, 2017 NY Slip Op 31806(U) (N.Y. Sup. Ct. Aug. 28, 2018)
(holding that a non-party witnesses affidavit deserved fact rather than opinion work product protection; "[T]his court declines to compel disclosure of the non-party witness affidavits at this time, since Plaintiff failed to meet her burden of showing the she is unable, without undue hardship, to obtain the substantial equivalent of the affidavits by other means. Defendants provided Plaintiff with the last known addresses and phone numbers of multiple former employee non-party witnesses. Plaintiff concedes that she has information to believe that at least one non-party witness lives out of the state but Plaintiff failed to secure an open commission to take the deposition of this witness. Plaintiff also failed to show her due diligence of securing any witness for a deposition as Plaintiff has not served any non-party witness with a deposition subpoena. Furthermore, Plaintiff failed to support her conclusory argument that the non-party witnesses are unresponsive as Plaintiff failed to include any supporting documentation, such as a call log, returned letters, postal search, or affidavit from a private investigator detailing his or her due diligence to search for the witnesses. As such, the court grants Defendants' motion for a protective order. Nevertheless, to avoid additional motion practice, Defendants, at their discretion, may produce the non-party affidavits subject to redactions of any privileged or confidential information.")

Case Date Jurisdiction State Cite Checked
2018-08-28 State NY

Chapter: 45.403
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "Defendant UPS argues that Merriweather has failed to demonstrate a substantial need for these photographs, which were taken one day after the accident, because it gave Merriweather hundreds of photographs that were taken the day of the accident."; "Indeed, nothing suggests that the withheld photographs contain vital information which can be obtained only by viewing them and not from the other pictures.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 45.403
Case Name: In re Domestic Airline Travel Antitrust Litig., MDL Dkt. No. 2656, Misc. No. 15-1404 (CKK), 2018 U.S. Dist. LEXIS 113795 (D.D.C. July 10, 2018)
(holding that various airline defendants could not discover plaintiffs' work product relating to its earlier settlement with Southwest Airlines; "Defendants' preparation of a defense in this case should not rely upon gaining insight into Plaintiffs' trial strategy; instead, Defendants may ascertain directly relevant factual information from Southwest, which it can then use either to bolster its defense or to challenge it."; "Accordingly, having determined that Defendants may obtain the factual information they seek directly from Southwest, which will avoid any infringement on Plaintiffs' attorney work product protection, this Court OVERRULES the Defendant's objections regarding Interrogatory No. 15 and FULLY ADOPTS the Special Master's Amended Report and Recommendation No. 4, and it is hereby this 10th day of July, 2018.")

Case Date Jurisdiction State Cite Checked
2018-07-10 Federal DC

Chapter: 45.403
Case Name: Colley v. Dickenson County School Board, Case No. 2:17CV00003, 2018 U.S. Dist. LEXIS 66146 (W.D. Va. April 18, 2018)
(overruling a Magistrate Judge, and quashing plaintiff's motion to compel production of documents related to a teacher's employment discrimination claim against a school board; "Colley [Plaintiff] already has some salary comparisons previously provided to her and she can obtain any other relevant information about School Board employees through the normal discovery process, even if she cannot obtain the work-product material of the School Board's attorney.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal VA

Chapter: 45.403
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
(analyzing work product protection for defendant's investigation into sexual harassment claims; "Plaintiff fails to show at this time that she has a substantial need for the materials and is unable to obtain their substantial equivalent elsewhere. At oral argument, Plaintiff's counsel conceded that Defendant has now disclosed the names of the employees whom Ms. Maynes [Lawyer who acted as an investigator rather than a legal advisor] interviewed. Ms. Maynes herself is available to be deposed, and her deposition has already been scheduled. Plaintiff has not shown, therefore, that she has a substantial need for the reports or that she cannot obtain the same information through other means, namely, through deposing Ms. Maynes and interviewing or deposing the employees with whom she spoke. Although Plaintiff claims that the employees may be afraid to speak with her counsel out of fear of retaliation, her concerns are speculative and do not establish a substantial need and undue hardship.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NM

Chapter: 45.403
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(analyzing protection for a defendant's human resource representative's interview notes of a plaintiff, taken as part of an investigation into racial discrimination; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "For the notes Lauber [University assistant HR director] took during the interviews and meetings with the Hales, the Court finds that ESU has demonstrated Lauber's creation of these notes would have been both for the purpose of investigating the racial slur incident and also in anticipation of litigation brought by the Hales. Lauber's primary purpose in preparing these notes would have been in anticipation of litigation with the Hales since they indicated around the early June 2015 timeframe they had retained counsel and were acting upon the advice of an attorney. ESU has shown an underlying nexus between the preparation of Lauber's notes from interviews and meetings with the Hales and this specific litigation. The Court also finds that because one or both of the Hales were present during these meetings and interviews with Lauber, and apparently also have audio recordings of some meetings, they would be aware of the substance of those meetings. Plaintiff therefore cannot show that she has substantial need for the Lauber's interview notes and cannot obtain their substantial equivalent by other means. In addition, the Court finds that Lauber's interview notes would likely contain his mental impressions and opinions in his role as a representative of ESU's general counsel. Under Fed. R. Civ. P. 26(b)(3)(B), the Court is required to 'protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.' The Court concludes Lauber's notes from interviews and meetings with the Hales are not discoverable.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 45.403
Case Name: Carlin v. Dairy America, Inc., Case No. 1:09-cv-00430-AWI-EPG, 2017 U.S. Dist. LEXIS 144231 (E.D. Cal. Sept. 6, 2017)
(holding that documents relating to a plaintiff's interview of defendant's former employees deserve work product protection; "DairyAmerica have already deposed Mr. White and are free to depose Ms. Bimemiller [the defendant's former employees who had been interviewed by plaintiff's lawyer] and Ms. Elligsworth [all of whom were former defendant employees] to obtain the information they seek. . . . DairyAmerica's evidence does not show a benefit of production that outweighs their burden and expense of seeking this material through alternative means.")

Case Date Jurisdiction State Cite Checked
2017-09-06 Federal CA

Chapter: 45.403
Case Name: Hobart Corporation v. The Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017)
("Much of the investigation summary contains 'fact' work product, clearly relevant to this litigation. Plaintiffs, however, maintain that Defendants have failed to show that they have a substantial need for the majority of these materials and that they cannot, without undue hardship, obtain their substantial equivalent by other means. The Court agrees. As Plaintiffs note, the majority of the interviewees cited in the summary are still alive, and Defendants have had the same opportunity to locate and interview these witnesses as did Plaintiffs."; "The Court also agrees with Plaintiffs that some portions of the NASS Report (designated sections of pages 1, 4, and 9) also contain core work product that is protected from disclosure on that basis.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal OH

Chapter: 45.403
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; holding that a former company officer seeking discovery of Howrey's internal corporate investigation to defend themselves from an SEC action did not overcome the work product protection for materials generated during Howrey's internal corporate investigation; "Roberts requests disclosure of the documents based on substantial need. Roberts claims substantial need exists because these documents are relevant to whether he committed the acts with which he is charged, his state of mind and his ability to impeach key witnesses against him. Specifically, he claims the information may demonstrate McAfee frequently repriced option grants and that it was McAfee's controller that did so, which led Mr. Roberts to believe such modification was common and acceptable. He further claims the attorney's notes will help him determine individuals with knowledge of McAfee's accounting practices and determine the credibility of key witnesses. However, Roberts has not demonstrated why he cannot depose the witnesses himself. Roberts has not shown that any of the witnesses are unavailable or will assert their Fifth Amendment rights. Roberts is free to ask the witnesses what they knew and when they knew it and the witnesses may not claim that what they told the Howrey attorneys is protected by any privilege. Thus, a substantial need for the interview notes has not been shown. In light of this decision, Roberts is free to petition this court to increase the number of depositions he may conduct. Further, Roberts has shown absolutely no need for the attorney opinions and conclusions intertwined in the interview notes.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 45.403
Case Name: SEC v. Roberts, No. C 07-04580 MHP, 254 F.R.D. 371, 2008 U.S. Dist. LEXIS 64615 (N.D. Cal. Aug. 22, 2017)
(analyzing Howrey's disclosures to its corporate client's board of directors and to the government about the results of its internal corporate investigation; explaining that Howrey carefully limited its disclosure in some circumstances to historical facts, but in other circumstances answered questions about privileged communications Howrey had with witnesses; holding that a former company officer seeking discovery of Howrey's internal corporate investigation to defend themselves from an SEC action did not overcome the work product protection for materials generated during Howrey's internal corporate investigation; "Roberts requests disclosure of the documents based on substantial need. Roberts claims substantial need exists because these documents are relevant to whether he committed the acts with which he is charged, his state of mind and his ability to impeach key witnesses against him. Specifically, he claims the information may demonstrate McAfee frequently repriced option grants and that it was McAfee's controller that did so, which led Mr. Roberts to believe such modification was common and acceptable. He further claims the attorney's notes will help him determine individuals with knowledge of McAfee's accounting practices and determine the credibility of key witnesses. However, Roberts has not demonstrated why he cannot depose the witnesses himself. Roberts has not shown that any of the witnesses are unavailable or will assert their Fifth Amendment rights. Roberts is free to ask the witnesses what they knew and when they knew it and the witnesses may not claim that what they told the Howrey attorneys is protected by any privilege. Thus, a substantial need for the interview notes has not been shown. In light of this decision, Roberts is free to petition this court to increase the number of depositions he may conduct. Further, Roberts has shown absolutely no need for the attorney opinions and conclusions intertwined in the interview notes.")

Case Date Jurisdiction State Cite Checked
2017-08-22 Federal CA

Chapter: 45.403
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc argues that even if the spreadsheet is entitled to work product protection, it would 'suffer undue hardship to obtain the substantial equivalent of the materials by other means,' and therefore, this Court should order production. . . . We disagree. As set forth above, Manitowoc received the full scope of the information to which it is entitled. This information is contained in defendant's answer to Interrogatory No. 15 and other interrogatories.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 45.403
Case Name: SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016)
(holding that the work product doctrine protected an affidavit the plaintiff obtained from a former employee of defendant; concluding that the opinion work product doctrine applied, but then inexplicably addressing whether the defendant could overcome the work product protection covering the affidavits; ultimately concluding that the defendant did not do so; "From the record it appears that Brandon Rogers is a former employee of Blendtec. The record fails to contain any evidence that Blendtec has attempted to interview Rogers or to obtain his discovery deposition. There is no indication in the record that Rogers is unavailable to Blendtec, or that he is unable to provide to Blendtec information about what he knows about the facts of this case. In the absence of such evidence in the record, the undersigned finds that Blendtec has failed to make the showing required by the rules to be entitled to the production of this affidavit.")

Case Date Jurisdiction State Cite Checked
2016-05-13 Federal TN

Chapter: 45.403
Case Name: Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551 (N.D. Cal. May 6, 2016)
("Defendants have still not explained why they need the notes and reports to defend the securities fraud allegations, especially since they have or will question the witnesses at issue under oath. Courts often find no substantial need for otherwise protected materials where the requesting party has the opportunity to depose the witness about his earlier statements.")

Case Date Jurisdiction State Cite Checked
2016-05-06 Federal CA

Chapter: 45.403
Case Name: In re Western States Wholesale Natural Gas Antitrust Litig., MDL Dkt. No. 1566, Base Case No. 2:03-cv-01431-RCJ-PAL, 2016 U.S. Dist. LEXIS 61371 (D. Nev. May 5, 2016)
("Dynegy has disclosed the witnesses who were interviewed and produced the documents underlying the investigation conducted by its outside counsel. The Plaintiffs are able to obtain discovery from the witnesses who were interviewed by deposing the witnesses. Plaintiffs have not met their burden of establishing substantial need for the materials in preparation of their case, or that they are unable to obtain the substantial equivalent of the materials without undue hardship as required by Fed. R. Civ. P. 26(b)(3). It is indeed useful and cost effective to take advantage of the work product, mental impressions, legal analysis and conclusions of one's opposing counsel. However this does not meet the substantial need test.")

Case Date Jurisdiction State Cite Checked
2016-05-05 Federal NV

Chapter: 45.403
Case Name: United States v. Ormat Industries, Ltd., 3:14-cv-00325-RCJ-VPC, 2015 U.S. Dist. LEXIS 171802 (D. Nev. Dec. 23, 2015)
("Irrespective of whether Ormat has shown a substantial need, it has failed to demonstrate that other means of discovery are inadequate. Unlike in Stone, trial is still more than a year away, providing Ormat with 'ample opportunity over the course of the next several months to discover, with specificity, the facts and individuals most important to [its] case.'. . . Ormat has yet to depose Relators.")

Case Date Jurisdiction State Cite Checked
2015-12-23 Federal NV
Comment:

key case


Chapter: 45.403
Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's interview; finding that the cruise line did not waive work product protection covering the alleged assailant's interview statement to the port police; finding that the plaintiff could not overcome the cruise line's work product protection; "Plaintiff does not contend that the alleged perpetrator has a faulty memory, is unavailable, or will assert a privilege and refuse to testify. She has not articulated any specific reason why a work-product document should be provided to her. Plaintiff argues, in a wholly conclusory way, that she can 'never obtain the substantial equivalent of this evidence and [the perpetrator's] pending deposition testimony will never contain the detail and accuracy of the original statement.' This theory is not persuasive for several reasons."; "First, it is entirely speculative. Brown cannot now know whether a witness' testimony in a not-yet-taken deposition will contain less detail than the written statement. The statement at issue is only one page long, while the to-be-taken deposition will likely last at least a few hours. Thus, it is entirely possible that the deposition will contain far more detail than the written statement. Second, even if the statement turns out to contain more detail than the deposition testimony, this would not be a sufficient ground to overcome the work-product protection."; "Third, the leading commentators and an ample body of case law undercuts the theory.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal FL

Chapter: 45.403
Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
(analyzing protection for documents created in connection with the BP Gulf of Mexico oil spill; protecting as work product documents created by an expert who assisted in educating BP lawyers; "Wisner [land owner] has produced nothing to rebut BP's evidence that the data underlying the Fitzgerald [Expert] Reports is both Unified Command data generated during the oil spill response and publicly available data; that no field work or additional data gathering was conducted to generate the reports; and that BP has provided Wisner with all of the non-public data underlying these reports pursuant to the Access Agreement and in discovery. Accordingly, Wisner has neither shown a substantial need for the underlying data nor that it cannot obtain the substantial equivalent of the publicly available data from other sources. Wisner has not demonstrated a substantial need for Dr. Fitzgerald's analysis, when it can engage its own experts to evaluate the data to which it has access.")

Case Date Jurisdiction State Cite Checked
2015-11-13 Federal LA

Chapter: 45.403
Case Name: JDS Therapeutics, LLC v. CVS Pharmacy, Inc., 15-cv-4365 (JSR), 2015 U.S. Dist. LEXIS 145634 (S.D.N.Y. Oct. 22, 2015)
(holding that products tests can serve work product protection; "This entreaty is unpersuasive, however, because, as plaintiffs observe, any expert tests that they intend to use as evidence in this action will be timely disclosed to defendant in accordance with the expert disclosure deadlines set in the case management plan. Moreover, defendant is perfectly capable of testing its own products for the ingredient at issue, and 'where a party has the ability to 'perform its own tests', '[s]uch testing would not be [considered] an undue hardship.'")

Case Date Jurisdiction State Cite Checked
2015-10-22 Federal NY

Chapter: 45.403
Case Name: Sparks v. Norfolk Southern Railway Co., Cause No. 2:14-CV-40-JTM-PRC, 2015 U.S. Dist. LEXIS 135317 (N.D. Ind. Oct. 5, 2015)
("Plaintiff argues that, even if work product privilege is not waived, Defendant should be compelled to produce the documents because Plaintiff has a substantial need for them and has no ability to obtain their substantial equivalents without undue hardship. See Fed. R. Civ. P. 26(b)(3)(A). The Court notes that eleven of the thirteen documents withheld are documents written by Defendant's claim agent Frank Mahoney. Plaintiff was scheduled to depose Mr. Mahoney on August 19, 2015, indicating that Plaintiff has a means of obtaining the substantial equivalent of the eleven documents written by Mr. Mahoney, namely a deposition of the documents' author. The exception to the work product privilege does not apply to these documents, so the Court will not compel their production."; "The Court notes that Plaintiff has made no allegation of how these two documents might contain evidence of mutual mistake. Even if there is no method by which Plaintiff could obtain the substantial equivalent of these two documents, Plaintiff has failed to demonstrate substantial need for them. Plaintiff's argument that the exception to the work product privilege requires production of these documents fails, and the Court will not compel Defendant to produce them.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal ID

Chapter: 45.403
Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2015 U.S. Dist. LEXIS 100109 (E.D. Tex. July 31, 2015)
("Relators assert that they have produced to Homeward all the actual documents accompanying the disclosure statements, as well as the identity of any persons named within the disclosure statements . . . . Additionally, Homeward has deposed Relators and had the opportunity to question them regarding the information contained within their allegations and their investigative efforts . . . . Therefore, the Court finds that Homeward has not made the requisite showing needed to compel the production of the documents protected under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal TX

Chapter: 45.403
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Neither is the Underwoods' statement to police substantially equivalent. Though it is contemporaneous to the accident, it contains significantly less detail than their witness statements. The police statement is eighteen handwritten lines . . . While the two witness statements total sixteen typed pages, Tr. Of Underwoods' Statements. . . . Furthermore, while the Underwoods submitted one statement to police, they were examined by defense counsel independently and consequently provided two distinct statements. The police statement cannot match the level of detail and specificity contained in the Underwoods' verbatim statements, which were also under oath, and thus cannot be considered substantially equivalent.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.403
Case Name: Pinkney v. Winn-Dixie Stores, Inc., Civil Action No.: CV214-075, 2014 U.S. Dist. LEXIS 129604, at *6 (S.D. Ga. Sept. 15, 2014)
("Defendant nonetheless produced to Plaintiff a redacted copy of the incident report, and, to the extent that Plaintiff's Motion seeks an unredacted version, Plaintiff has not shown substantial need and undue hardship with regard to the redacted portions. Given that Plaintiff has the factual portions of the incident report, Plaintiff can adequately prepare her case; Plaintiff does not have a substantial need for the manager's mental impressions and conclusions in order to do so.")

Case Date Jurisdiction State Cite Checked
2014-09-15 Federal GA

Chapter: 45.403
Case Name: Szulik v. State Street Bank and Trust Co., Civ. A. No. 12-10018-NMG, 2014 U.S. Dist. LEXIS 110447 (D. Mass. Aug. 11, 2014)
("State Street has not established any substantial need for the chronology. . . . And authorities cited (ordinary 'fact' work product may be ordered produced if there is a substantial need for the materials). Since State Street is free to depose Mr. Szulik, it can obtain the factual information contained in the document from him.")

Case Date Jurisdiction State Cite Checked
2014-08-11 Federal MA

Chapter: 45.403
Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
(applying the work product protection to a defendant employee's selection of documents; "Plaintiffs have received all of the underlying data used to generate the subject documents, via Simulink and source code as well as financial disclosures, which would enable Plaintiffs to generate, for themselves, the substantial equivalent of these documents.")

Case Date Jurisdiction State Cite Checked
2014-07-11 Federal MD

Chapter: 45.403
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that the plaintiffs cannot overcome the work product protection covering WilmerHales' documents; "Plaintiffs claim that they should receive the requested information in any event because they have a substantial need for the materials and will not be able to obtain their substantial equivalent without undue hardship. . . . To the extent Defendants do not intend to introduce the Restructuring Report at trial, however, Plaintiffs have no substantial need for the information for cross-examination purposes."; "Nor have Plaintiffs demonstrated that they cannot obtain the equivalent information without undue hardship. Plaintiffs insist that they cannot recreate the WilmerHale investigation because they are only allowed to take 55 depositions and, thus, cannot depose all of the individuals WilmerHale interviewed. . . . Plaintiffs also lament that witnesses may have forgotten crucial facts and Household may have deleted relevant email messages. . . . Plaintiffs fail to explain, nor does the court see, why they need to depose every WilmerHale interviewee in order to test the law firm's conclusions, especially where Defendants do not intend to make those conclusions part of their defense. . . . Moreover, Plaintiffs have deposed, or have scheduled depositions of nine current or former HMS employees who can testify about the Markell allegations and the conclusions stated in the Restructuring Report. Notably, Plaintiffs have the underlying data KPMG [Household's regular auditor] used to test the accuracy of the Restructuring Report, and the Report itself. Under these circumstances, Plaintiffs have not demonstrated undue hardship for purposes of overcoming the work product privilege.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.403
Case Name: Weiser v. Grace, Index No. 106285/95, Seq. No. 005, 1998 N.Y. Misc. LEXIS 592 (N.Y. Sup. Ct. Aug. 31, 1998)
(addressing derivative plaintiff shareholders' motion compelling production of Cravath's documents generated during its representation of a Special Litigation Committee; explaining the court's role in analyzing a Special Litigation Committee's recommendation to dismiss the derivative case, and ultimately ordering an in camera review of privileged and work product-protected documents relating to Cravath's investigation, and indicating that the court probably would order production of documents; among other things, noting that the Special Litigation Committee lawyers represent the Committee "and the corporation as a whole (e.g., the [derivative] plaintiff shareholders]"; "Plaintiffs move for an order compelling the Special Litigation Committee of the W.R. Grace & Co. Board of Directors (the SLC) to produce witness outlines, notes and summaries of interviews conducted by the SLC and its counsel, which interviews form the basis of the SLC's pending motion to dismiss the amended complaint."; explaining that the derivative action alleges the company's favoritism toward the former CEO J. Peter Grace and his family; "On May 9, 1997, the Board created the SLC to investigate the allegations in the amended complaint. Specifically, the SLC was charged with determining whether continued pursuit of this lawsuit was in the best interests of Grace. The Board resolution appointing the SLC accorded the committee full authority to deal with this lawsuit without any further reference to the Board. The SLC retained the firm of Cravath, Swaine & Moore (Cravath) to act as its counsel. The SLC conducted its investigation by reviewing documents and conducting interviews of defendants and other personnel concerning the matters raised in the complaint. The committee relied heavily on its counsel in its investigation. Indeed, counsel conducted 10 of the 14 interviews and then reported back to the SLC about the substance of the interviews."; pointing to ZaPata Corp. v. Maldonado (430 A2d 779 (Del. Sup. Ct. 1981) as indicating how Delaware court handle Special Litigation Committees; "[T]he court finds that the production of the notes, summaries and outlines regarding the committee's interviews of witnesses is necessary and will facilitate determination of the reasonableness and good faith of the SLC's investigation. Contrary to the SLC's contentions, plaintiffs' requests do not constitute all-encompassing merits discovery. In order for plaintiffs to reasonably challenge the thoroughness of the SLC's factual investigation, they must be able to examine the questions posed and the subjects explored in the witness interviews. Similarly, it is impossible for the court to assess whether the SLC pursued its charge with diligence and zeal, if the court is unable to review the development of the factual record that underlies the Revised Report."; "[T]he SLC in the instant case relied heavily on counsel who conducted 10 of the 14 interviews which formed the factual basis for its Revised Report. Likewise, the witness interviews were not transcribed. The only witness record of the interviews are counsel's notes, outlines and summaries. To deny plaintiffs the opportunity to discover the questions asked of the key witnesses, and whether the responses thereto were used or ignored by the SLC in forming its conclusions and preparing its report, would impermissibly allow the SLC to insulate its investigation from scrutiny by simply using counsel to conduct the interviews. . . . this court is troubled by the issue of whether the SLC acted in good faith when it preserved the interview testimony in such a way that it could then protect it from examination by asserting."; "When assessing the good faith and reasonableness of the SLC's investigation, the court must also determine whether the committee's reliance on counsel was in good faith. . . . To successfully challenge the committee's good-faith reliance on counsel, plaintiffs must show overreaching by counsel or neglect by the SLC. . . . If counsel incompetently conducted the interviews, the SLC's reliance and good faith would be called into question."; "The court recognizes that some of the documents sought may contain privileged matter which may be immune from discovery, notwithstanding their relevance to issues of good faith and the reasonableness of the investigation. Thus, an in camera review is the appropriate procedural vehicle to ensure that those privileges are not violated, while permitting plaintiffs to obtain the discovery necessary to challenge the SLC's good faith. However, the court notes that the application of the attorney-client privilege is problematic. The SLC's counsel represents both the SLC and the corporation as a whole (e.g., the plaintiff shareholders). Under such circumstances, the attorney-client privilege would not bar discovery of all communications between counsel and the SLC."; also addressing the work product protection; "The work product doctrine protects materials specifically written in preparation for threatened or anticipated litigation. . . . Again, even if the SLC's materials qualify for work product protection, they may still be discoverable if the shareholder seeking such discovery from the corporation can demonstrate 'good cause.'"; "In this case, plaintiffs have shown that there are many shareholder interests at stake, including the interests of one of the corporation's largest shareholders, the California Public Employees Retirement System. In addition, plaintiffs have demonstrated that the discovery they seek is not available from other sources since the interviews were not recorded. Plaintiffs have also established that the communications do not necessarily disclose counsel's advice to the SLC regarding this litigation. However, before ordering production of the requested documents, the court will review the documents in camera. . . . The in camera review will protect against disclosure of the mental impressions, conclusions, opinions or legal theories of SLC's counsel."; "Accordingly, it is ordered that the motion to compel is held in abeyance pending the court's in camera review, and it is further ordered that the SLC shall submit the subject documents to the court within 15 days of service of a copy of this decision with notice of entry.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.403
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that E&Y's documents deserved fact work product protection, which plaintiffs could overcome; "The fact that Household decided to conduct a more expansive review does not, however, contradict its assertion that it retained E&Y because of the prospect of litigation. The court is satisfied that Defendants have met their burden of showing that the E&Y documents constitute privileged work product."; "The court agrees that the E&Y documents constitute work product in that E&Y conducted its evaluation as an agent of Household's General Counsel's office. . . . The court is less certain that the documents constitute 'opinion' work product as contemplated by Rule 26, and finds that Household has not met its burden on this issue. As for the fact work product, the court believes that Plaintiffs have met their burden of overcoming the privilege. . . . Plaintiffs have demonstrated a substantial need for the E&Y information in that it may assist Plaintiffs in establishing falsity, scienter, and materiality. Plaintiffs do not have the underlying data E&Y utilized in preparing its report, and without this information, it is not clear that witness depositions would provide Plaintiffs with the substantial equivalent of the materials. Thus, Plaintiffs' motion to compel the E&Y materials is granted.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.403
Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 576 (W.D. Va. 2006)
(holding in a criminal case that "testimony by the Attorney about what he was told by the Witness" constituted fact work product; finding that the government had not established the basis for overcoming the work product protection; "After reviewing the case law and arguments of the parties, the court concludes that the government has failed to meet its burden, and the motion to quash must be granted. The court finds that the Witness is available to testify before the grand jury about the conversations with the Attorney, a substantial equivalent to the Attorney's testimony. However, the government claims that there is still a substantial need for the Attorney's testimony in order to either bolster or contradict the Witness' testimony. As the United States Court of Appeals for the Second Circuit has noted, this argument is more appropriate in regard to the government's need for trial testimony. . . . The government can establish probable cause by using the testimony of the Witness, without external corroboration of the Witness' testimony. . . . Notably, the government's own explanation of substantial need in this case focuses on a situation in which defense counsel could attack the testimony of the Witness at trial. This concern does not speak to the government's need for the Attorney's testimony before the grand jury." (emphases in original))

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 45.403
Case Name: In re S<3> LTD., 252 B.R. 355, 364-65 (E.D. Va. 2000)
("[A]s with all of the other discovery MANCON has propounded, the information sought therein may enlighten any number of issues before the Court concerning the Motion to Lift Protective Order and the Sanctions Motion. In addition, the Vander Schaaf Report is, on its face, apparently the only complete source of the information contained in the Disclosure regarding Vander Schaaf's findings. (footnote omitted) Thus, MANCON has a demonstrated substantial need for the Vander Schaaf Report, and that it would be an undue hardship for MANCON to obtain the report's contents elsewhere. Therefore, MANCON is entitled to discovery of the report's nonopinion elements, though the other parts of the report would be considered opinion work product and would ordinarily be privileged.")

Case Date Jurisdiction State Cite Checked
2000-01-01 Federal VA

Chapter: 45.404
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "District courts in this circuit have recognized that statements taken shortly after the event in question are more acute and 'unique' in that they provide an immediate impression of the facts. . . . Defendant UPS was in the unique position of being able to interview key witnesses on the same day of the accident, while the same opportunity was unavailable to Merriweather. . . . Merriweather has shown a substantial need for the written statements by Defendant Jeremy Semmler and Kenny Gregory that were taken on the date of the accident. Accordingly, Merriweather is entitled to their production."; "Unlike the written statements that were given by witnesses to the accident on the date of the accident, the third recorded statement by co-Defendant Anthony Lee was taken by Defendant UPS' insurance adjuster on August 11, 2015, close to three months after the accident. Plaintiff Merriweather has not demonstrated a substantial need for the statement, especially since he still has the opportunity to depose Defendant Anthony Lee. A substantial need for the discovery of work product does not exist where the same information can be obtained by deposition or other discovery methods.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 45.404
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
September 5, 2018 (PRIVILEGE POINT)

Court Rejects a Personal Injury Plaintiff's Effort to Overcome Defendant's Work Product Protection for Accident Scene Photographs

Defendants' accident scene photographs usually deserve work product protection if the defendants reasonably anticipated litigation. But plaintiffs frequently can overcome that protection for photographs defendants took immediately after the accident – if the scene changed by the time the plaintiffs arranged for their own photographs.

In Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018), plaintiff fell into a construction hole on January 31, 2017. Because of his hospitalization, he did not retain a lawyer until April. Plaintiff sought defendant's accident scene photographs, arguing that "by the time he was able to obtain photographs, the site had changed dramatically." Id. at *15. But the court rejected plaintiff's argument -- noting that defendant's photographs "establish that the work site had already been altered to prevent other similar accidents." Id. In other words, defendant's post-accident photographs were no more valuable than plaintiff's later photographs, because neither one showed the January 31 conditions.

Litigants' efforts to overcome adversaries' work product protection involve timing and other nuances that generally do not arise with the more abstract and absolute attorney-client privilege.

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal

Chapter: 45.404
Case Name: Taber v. Ford Motor Company, Case No. 16-00162-CV-W-SWH, 2017 U.S. Dist. LEXIS 160709 (W.D. Mo. Sept. 29, 2017)
(holding that plaintiff could overcome Ford's work product protection for post-accident pictures; "This privilege log claims the work product privilege for photographs taken of vehicles following accidents. . . . Plaintiffs contend these cases involve similar accidents in that the airbags are alleged not to have deployed after moderate to severe frontal impacts and that the photographic evidence of the condition of the fuse and other parts of the vehicles are essential to their claim. Ford asserts the work product privilege for photographs taken in the Bryant, Dunwoody and Hood cases as well as for the initial draft of an expert report . . . . As discussed above, plaintiffs have established a substantial need for OSI material and have offered evidence that counsel for plaintiffs has attempted to obtain the photographs from other sources and was not able to do so because of the age of the cases.")

Case Date Jurisdiction State Cite Checked
2017-09-29 Federal MO

Chapter: 45.404
Case Name: Ludwig v. USF Holland, Inc., Civ. A. No. 2:2016-CV-44 (JGW), 2017 U.S. Dist. LEXIS 132369 (E.D. Ky. Aug. 18, 2017)
(holding that the possibility that work product protected documents might help in an impeachment effort overcame the work product protection; "Applying that doctrine to this case, Rule 26(b)(3)(A)(ii)'s exception for facts that are essential and not discoverable by other means proves determinative. Schultz is an essential witness to determining whether Amanda Ludwig died immediately when the semi-truck struck her vehicle, or whether she survived and suffered anguish in the ensuing moments. Schultz's visual and auditory perceptions in the moments after the crash provide the insight of a neutral third party on the scene at the critical moment in question. Therefore, there is a substantial need for all parties to have the best statement of Schultz's perceptions possible."; "Defendants certainly have one version of Schultz's perceptions, since Schultz gave deposition testimony. But Schultz's account of the events in his deposition may have differed from his initial recitation of the facts when he spoke with Plaintiff's counsel over the phone and at counsel's office, and when he was closer in time to the events in question. Any even slight dissonance would provide Defendants with an opportunity to impeach Schultz. And, other than obtaining a copy of the transcripts in question, there is no alternative way for Defendants to discover what Schultz said at the time he spoke with Plaintiff's counsel. Depriving Defendants of that transcript would work a substantial hardship on Defendants by removing a potentially essential tool in determining how long the decedent lived after the accident.")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal KY

Chapter: 45.404
Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; holding that the plaintiffs could not overcome the work product protection, but would have the chance to try again later; "The Court will, however, allow Plaintiffs to re-urge necessity at a later date. It reminds Plaintiffs of the very high burden required to prove that they 'cannot, without undue hardship, obtain' the materials they seek, or their substantial equivalent. The Court is therefore likely to only entertain narrow and specific requests for necessity where Plaintiffs have evidence demonstrating that they have been unable to obtain the information sought through other means.")

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX

Chapter: 45.404
Case Name: Theidon v. Harvard Univ., Civ. A. No. 15-cv-10809-LTS, 2017 U.S. Dist. LEXIS 82085 (D. Mass. May 30, 2017)
(analyzing a former Harvard professor's lawsuit against Harvard; noting that the plaintiff claimed to have prepared notes of a meeting with another professor to discuss tenure, but that she no longer possessed the original notes – instead having incorporated the notes into a memorandum to her lawyer; holding that Harvard could overcome any work product protection for the notes because they were near-contemporaneous, but ordering an in camera review to assess any privilege protection; "The notes, taken directly after the meeting, are a contemporaneous account. With the notes unavailable, Harvard has met the standard to show substantial need for the later-created, but still much closer in time, quarter-page summary based on the notes."; "Because the quarter-page summary was part of a communication to Theidon's attorney, Theidon shall first produce, within seven days, the summary (not the full timeline document) ex parte under seal for the Court to review. After review, the Court will disclose the document to Harvard, unless upon review the Court perceives a possible privilege issue.")

Case Date Jurisdiction State Cite Checked
2017-05-30 Federal MA

Chapter: 45.404
Case Name: Rogers v. Span Systems, Civ. A. No. 16-12165-DPW, 2017 U.S. Dist. LEXIS 68997 (D. Mass. May 5, 2017)
(ordering plaintiff to produce contemporary witness statements by a third party; "Assuming, without deciding, that the witness statements at issue here fall within the scope of the work product doctrine, this court finds that the defendant has established both a substantial need for statements at issue, and that it would not be possible to obtain their substantial equivalent without undue hardship. The statements were taken from witnesses near the time of the incident in question. 'Such statements are unique in that they provide a contemporaneous impression of the facts.'. . . Furthermore, the defendant has made an effort to speak with the witnesses independently, and has shown that the passage of time has made it 'practically impossible' to obtain the substantial equivalent of the statements at this point in the litigation. . . . Therefore, its motion to compel the production of the third-party witness statements of Messrs. Puopolo and DaSilva is allowed.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal

Chapter: 45.404
Case Name: Brown v. NCL (Bahamas), Ltd., Case No. 15-21732-CIV-LENARD/GOODMAN, 2015 U.S. Dist. LEXIS 165346 (S.D. Fla. Dec. 9, 2015)
(analyzing work product issues in connection with a post-accident investigation of an assault on a cruise ship; presenting the factual scenario and finding work product protection for the alleged assailant's interview; finding that the cruise line did not waive work product protection covering the alleged assailant's interview statement to the port police; finding that the plaintiff could not overcome the cruise line's work product protection; "Plaintiff does not contend that the alleged perpetrator has a faulty memory, is unavailable, or will assert a privilege and refuse to testify. She has not articulated any specific reason why a work-product document should be provided to her. Plaintiff argues, in a wholly conclusory way, that she can 'never obtain the substantial equivalent of this evidence and [the perpetrator's] pending deposition testimony will never contain the detail and accuracy of the original statement.' This theory is not persuasive for several reasons."; "First, it is entirely speculative. Brown cannot now know whether a witness' testimony in a not-yet-taken deposition will contain less detail than the written statement. The statement at issue is only one page long, while the to-be-taken deposition will likely last at least a few hours. Thus, it is entirely possible that the deposition will contain far more detail than the written statement. Second, even if the statement turns out to contain more detail than the deposition testimony, this would not be a sufficient ground to overcome the work-product protection."; "Third, the leading commentators and an ample body of case law undercuts the theory.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal FL

Chapter: 45.404
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(holding that defendants could not overcome plaintiff's work product protection for witness interview memoranda; "In this case, Defendants have failed to meet their burden of showing substantial need and undue hardship for all of the Reports of Interview. Defendants rely on the passage of time between the interviews conducted by Agents Haire and LeFaivre and interviews that could be conducted now by Defendants. . . . However, the passage of time, standing alone, is not always sufficient to establish substantial need. . . . Further, if a witness is available to the other party, discovery is generally not allowed. . . . Here, Defendants have failed to depose any of the witnesses. . . . Although Defendants have attempted to contact some of the witnesses by telephone with no success, 'it is clear that the mere refusal of these witnesses to be interviewed by defendants' counsel does not constitute a sufficient showing of necessity to justify disclosure of otherwise privileged work[-]product.'")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 45.404
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("The court agrees that broad unsubstantiated assertions of unavailability or faulty memory are insufficient to arise to a substantial need. However, in this case, the Plaintiffs have sought production of documents to refresh the recollection of witnesses who are no longer employed in their relevant positions with ACE. Thus, it is reasonable to conclude that these witnesses may be unable to remember facts relevant to the Plaintiffs' deposition. Further, the Plaintiffs have indicated that the depositions will take place in Canada, To promote efficiency, and prevent repeated depositions, the court finds that the Plaintiffs have presented more than a mere unsubstantiated assertion of faulty memory. Thus, the Plaintiffs have a substantial need for said documents.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 45.404
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "The mere lapse of time may be sufficient to justify the production of materials otherwise protected by work product, although this has almost exclusively been applied only to statements of witnesses taken shortly after an accident.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 45.404
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Neither is the Underwoods' statement to police substantially equivalent. Though it is contemporaneous to the accident, it contains significantly less detail than their witness statements. The police statement is eighteen handwritten lines . . . While the two witness statements total sixteen typed pages, Tr. Of Underwoods' Statements. . . . Furthermore, while the Underwoods submitted one statement to police, they were examined by defense counsel independently and consequently provided two distinct statements. The police statement cannot match the level of detail and specificity contained in the Underwoods' verbatim statements, which were also under oath, and thus cannot be considered substantially equivalent.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.404
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Galloway stresses how soon after the accident the statements were taken and how he was unable to initiate his own investigation until after he was discharged from the hospital two months later.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.404
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "The Underwoods are key witnesses to the accident and the events leading up to it. Accurate recordings of their recollections are of paramount importance to Galloway's ability to prepare his case. . . . While Galloway can secure the Underwoods' sworn statements at this time through depositions, he will receive their recollections only through the imperfect window of two intervening years. A deposition based on two-year-old memories is not the substantial equivalent of a witness statement taken a week after the incident, especially when Galloway was physically incapable of initiating his own contemporaneous investigations due to his injuries.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.404
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "[C]ontemporaneous witness statements have inherent significance because they record a witness's fresh recollections. This significance is fully distinct from any impeachment value they may also have and can independently warrant disclosure when the movant lacks their substantial equivalent. As I find that the Underwoods' statements are inherently valuable as contemporaneous recollections and Galloway does not have access to their substantial equivalent, he need not make any showing of the statements' impeachment value for his motion to succeed.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.404
Case Name: Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisdiction State Cite Checked
2014-07-10 Federal LA
Comment:

key case


Chapter: 45.404
Case Name: Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014)
August 27, 2014 (PRIVILEGE POINT)

“Courts Analyze Work Product Protection for Final and Draft Affidavits”

Analyzing work product protection for party or witness affidavits can involve several factors.

In Colon v. City of New York, No. 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483 (S.D.N.Y. July 8, 2014), the court assessed affidavits that a malicious prosecution plaintiff finalized, but had never filed, in his earlier criminal case. The court concluded that the work product doctrine applied — because the plaintiff had prepared the affidavits "in connection with his post-conviction litigation." Id. at *9. However, the court held that the defendant City could overcome the protection, because the 1999 affidavits contained "factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990." Id. The court pointed to "the length of time that has passed" since the events, and the City's possible use of the affidavits to impeach the plaintiff. Id. Two days later, another court dealt with draft affidavits. In Total E&P USA, Inc. v. Kerr-McGee Oil & Gas Corp., the defendants fought to discover drafts of the "near-identical" affidavits filed by several individual gas and oil royalty claimants. Civ. A. No. 09-6644, 2014 U.S. Dist. LEXIS 93881, at *8 (E.D. La. July 10, 2014). The court noted that a defense lawyer "admitted at the oral hearing that he seeks to review the 'back and forth process' between" the plaintiffs and their lawyer "while drafting the affidavits." Id. at *16. The court held that disclosing those drafts would "reveal the mental impressions and strategies of counsel for claimants," and thus found the draft affidavits immune from discovery as opinion work product. Id.

Lawyers assessing protections for party or witness affidavits must consider, among other things, the affiant's role (communications between a client affiant and her lawyer might deserve privilege as well as work product protection); the affidavit's status (some courts might find that the final version loses any privilege or work product protection); and lawyers' role in preparing draft affidavits (the more extensive the role, the more likely the privilege or the opinion work product doctrine is to apply).

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY
Comment:

key case


Chapter: 45.404
Case Name: Colon v. The City of New York, 12-CV-9205 (JMF), 2014 U.S. Dist. LEXIS 92483, at *9 (S.D.N.Y. July 8, 2014)
(holding that a completed but never-filed affidavit deserved work product protection, but that the defendant could overcome the protection because the affidavit had been prepared much earlier; "The affidavits, dated 1999, contain factual assertions made by the Plaintiff regarding events that occurred in 1989 and 1990. Because of the length of time that has passed, and because Defendants may wish to use these materials to impeach Plaintiff -- perhaps the most critical witness in this case -- the Court finds that Defendants have met their burden needed to overcome any work-product protection.")

Case Date Jurisdiction State Cite Checked
2014-07-08 Federal NY

Chapter: 45.404
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *9 10 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "[E]ven when a witness is available for deposition, a litigant may be able to establish substantial need for his or her prior statement when that statement was made shortly after the incident at issue.")

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 45.404
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *14 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "Moreover, the photos that Plaintiff did take at the site inspection are not the substantial equivalent of Defendants' photos because their quality is so poor that it is impossible to read some of the labels on the items photographed. Other courts have held that pieces of evidence are not substantially equivalent if they differ significantly in caliber or utility.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.404
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *10-11 (E.D. Va. Sept. 14, 2009)
("As noted in McDougall, 468 F.2d at 474 [McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir. 1972)], the reason for requiring production of interviews conducted immediately after an accident is that '[T]he lapse of many months and the dimming of memory provides much reason for [] counsel to examine any substantially contemporaneous declarations or admissions. Aside from what assistance it may be in the preparation of a case for trial, the production of such a statement, after the lapse of time, permits a more realistic appraisal of cases and should stimulate the disposition of controversies without trials.' And, as discussed in Coogan v. Cornet Transportation Co., 199 F.R.D. 166, 167-68 (D. Md. 2001), the ultimate consequences of an overbroad privilege in this context would be unappealing: '[I]t would not be reasonable to expect a layperson, injured [in an accident], to immediately hire an investigator or an attorney to record the contemporaneous statements of [the party allegedly responsible for the accident]. Indeed, a contrary decision would make it necessary for lawyers to approach injured persons in their hospital beds when they are at their most vulnerable, a practice that is widely condemned as unethical.'")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.404
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *16-17 (E.D. Va. Sept. 14, 2009)
("Document 19 is an interview with Patricia Ferguson, a registered nurse at MCV, conducted three days after the decedent died on December 27, 2006. On May 29, 2009, more than two years and five months after the incident, the Plaintiffs deposed Nurse Ferguson. According to the Defendants, this deposition covered 213 pages. . . . At her deposition, in response to questions such as whether or not she had spoken to police, whether handcuffs were used, who else was involved in the incident, Nurse Ferguson responded with some version of 'I can't remember.' . . . . The Plaintiffs allege, and the Defendants do not dispute, that Nurse Ferguson was a 'crucial participant and eyewitness to the events surrounding John Sanford's death.' She is alleged to have placed the initial call to the VCU Police for help, and to have started an IV on the decedent at the time of his restraint. . . . Nurse Ferguson demonstrated a difficulty in remembering evidence that rendered her practically unavailable to the Plaintiffs, despite the considerable efforts they appear to have taken to coax information out of her. It is possible that the deposition produced some useful information. However, this Court does not consider it substantially equivalent to an interview conducted three days after the incident, while the events were still fresh in Nurse Ferguson's mind. Thus, the Plaintiffs have shown substantial need for Document 19.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.404
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *23-24 (E.D. Va. Sept. 14, 2009)
("The issue, as now presented, turns, on large part, on the meaning of 'immediately' because three of the statements at issue (Documents 14, 15 and 17) are those of parties and witnesses. Two were taken on January 30, 2007 and one was taken on February 2, 2007, slightly more than a month after Sanford's death. Neither party has sought to define 'immediately' as used in National Union and the Court has found no definition. However, the statements are follow-up statements of earlier interviews. And, they were taken about a month after the incident when events were relatively fresh in the mind of the giving party. Considering those facts and the inconsistencies and lack of recall demonstrated by the Plaintiffs, the purpose of National Union's 'unique catalyst' theory is served by requiring production of these documents. Additionally, these statements have unique value as impeachment. On balance then, as to these three documents, the Plaintiffs have met their burden.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.404
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *20, *21, *22-23 (E.D. Va. Sept. 14, 2009)
("[A] two-year old deposition is not substantially equivalent to an interview conducted five days after the incident, where, as here, the doctor lacked recollection in a significant way."; "Document 27 is an interview with Dr. Patrick Maiberger, the on-call physician during the night of decedent's death. Pl. Memo, at 11. The interview was conducted on January 8, 2007, two weeks after the incident. Id."; "This interview took place long enough after the incident to push the boundaries of "substantially contemporaneous." It is highly debatable whether an eight-days-later interview meets the standard of immediacy articulated in National Union. Still, memories fade far less in two weeks than in two years. Moreover, closeness in time is not the sine qua non of substantial need in this context. Any information relating to Dr. Maiberger's responsiveness could have a significant impact on a jury's determination of whether he, and the other medical Defendants, exercised reasonable care in treating the decedent. And like the other interviews with medical personnel, it is hardly accurate to consider the Plaintiffs' deposition as the substantial equivalent of Document 27. Although it is a closer question than for the some of the other documents, the Court finds that the Plaintiffs have met their burden to demonstrate substantial need, and Document 27 must be produced.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.404
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *11 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "Plaintiffs have met their burden of proof in demonstrating that they have a substantial need for Document 42, which contains a chronicle of events by Deborah Boiling [defendant doctor] and Jackie Wright [defendant nurse]. These are interviews which were prepared on the day of John Charles Sanford's death. When the plaintiffs had the opportunity to depose both witnesses approximately two years after the accident, it was revealed that neither witness had specific memory of certain events that took place on the day of decedent's death. Therefore, the Court holds that Document 42 is discoverable.")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA B 12/10

Chapter: 45.404
Case Name: Maki v. United States, Civ. A. No. 7:07cv443, 2008 U.S. Dist. LEXIS 31496, at *17-18 (W.D. Va. Apr. 15, 2008)
(finding that a plaintiff suing the VA had not established sufficient grounds to overcome the government's work product protection; "At oral argument, plaintiff suggested that substantial need may be met here due to the passage of time and the need to get factual information concerning this incident obtained closer to the date of the incident. On balance, and given the fact that the court is ordering production of the VA OIG report and its attachments which contain timely factual information about this incident, it does not appear that plaintiff can meet its burden of showing substantial need for the peer review reports. As such, given the production of the VA OIG reports, the peer review materials need not be produced.")

Case Date Jurisdiction State Cite Checked
2008-04-15 Federal VA B 5/09

Chapter: 45.404
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "In proceeding, and in her deposition, Hawkins made statements suggesting that she regrets her inability to remember details about the accident. The fact that Hawkins' memory is at issue and that Hawkins' contemporaneous statements regarding the accident are not available to both parties leads the Court to conclude that Massenburg has shown substantial need for the documents.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.404
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "Federal courts have recognized the value of the statements of a party or witness made a short time after an event at issue in litigation. Courts are unanimous in finding that a contemporaneous statement provides good cause for allowing discovery. Guilford Nat'l Bank v. Southern Ry. Co., 297 F.2d 921, 926 (4th Cir. 1962). This value is particularly evident in cases where the 'witnesses' statements [are] approximately contemporaneous with the accident . . . [and] opposing counsel had no opportunity to question the witnesses until weeks or months later.' Id.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.404
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42 (Va. Cir. Ct. 1997)
(holding that the plaintiff had established her inability "without undue hardship, to obtain a substantial equivalent" of the defendant's post-accident statement to her insurer; noting that the plaintiff had established the need to obtain statements of witnesses taken immediately after the accident; "[t]hese statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.404
Case Name: Ring v. Mikris, Inc., 40 Va. Cir. 528, 535-36 (Va. Cir. Ct. 1996)
(finding that photographs taken immediately after an accident were prepared in "anticipation of litigation" but were nevertheless discoverable because they were taken soon after the accident and therefore could not be recreated)

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 45.404
Case Name: Ramsey v. Gordon, 39 Va. Cir. 409, 409-10 (Va. Cir. Ct. 1996)
(addressing work product protection for recorded statements taken by an insurance company in a third party insurance context; ultimately finding that the statements did not deserve work product protection; "The claims representative obtained recorded statements from the plaintiff, defendant Gordon and two witnesses, Ronald E. Robertson and Judith Burkhardt. Objection to production of the statements is made on the grounds that they are protected by the attorney work product doctrine and/or were prepared in anticipation of litigation. The statements were taken within thirty days of the automobile accident out of which the underlying cause of action arose and before defendants' insurer denied any claim. The underlying cause of action was filed almost two years after the accident date. The plaintiff is entitled to production of his statement under Rule 4:1(b)(3) irrespective of the attorney work product doctrine or whether it was obtained in anticipation of litigation. The Court further finds as a matter of fact and law that the four statements in question are not attorney work product and that they were obtained in the ordinary course of business rather than in anticipation of litigation. The gathering of such information is essential for the insurance industry to properly adjust claims and establish reserves, and the availability of statements obtained in this process is often essential to the integrity of the fact finding process when litigation ensues.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.404
Case Name: Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 472 (Va. Cir. Ct. 1996)
("With regard to the statements made by Defendant's employees which were requested in the subpoena, Plaintiff was able to and did in fact depose said employees and therefore was not 'unable without undue hardship to obtain the substantial equivalent of the materials by other means.' Typically, such statements are only discoverable when made by witnesses to an event where the passage of a substantial period of time between the occurrence of the event and the plaintiff's opportunity to depose them may lead to an erosion of the fullness and accuracy of their testimony. This does not appear to be an issue of concern in this case. However, because those statements taken prior to the point at which the likelihood that litigation would ensue became 'substantial and imminent' do not qualify as work-product, they are discoverable.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 45.404
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.404
Case Name: National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 985 (4th Cir. 1992)
(holding that a party is often entitled to post-accident statements under the "substantial need" test because such statements often constitute "unique catalysts in the search for truth.")

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal

Chapter: 45.404
Case Name: In re Grand Jury Subpoenas 89-3, 89-4 & 89-129, 734 F. Supp. 1207, 1215 (E.D. Va. 1990)
("Similar circumstances in the case at bar warrant the same result. The interviews in issue here were conducted approximately two years ago and concerned events occurring as much as six years ago. These interviews would surely constitute the most accurate and the principal, if not sole, source of evidence of Movant's state of knowledge in 1984 and thereafter. Surely the passage of six years has faded, if not wholly erased, most memories. . . . [T]he Court will conduct an in camera inspection of these interview documents prior to ordering disclosure. As a result of this inspection, the Court may order appropriate redactions to protect against any unwarranted or unnecessary disclosure of attorneys' mental processes."), aff'd in part and vacated in part on other grounds, 902 F.2d 244 (4th Cir. 1990)

Case Date Jurisdiction State Cite Checked
1990-01-01 Federal VA

Chapter: 45.404
Case Name: Harris v. Skyhook Corp., 8 Va. Cir. 307, 309, 310 (Richmond 1987)
(finding that the party seeking materials had not proven need although two years had passed since the interviews it unsuccessfully sought)

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 45.404
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Va. Cir. Ct. 1979)
(holding that statements taken from witnesses immediately after an accident that occurred two years earlier should be produced despite any work product protection)

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA

Chapter: 45.405
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
September 5, 2018 (PRIVILEGE POINT)

Court Rejects a Personal Injury Plaintiff's Effort to Overcome Defendant's Work Product Protection for Accident Scene Photographs

Defendants' accident scene photographs usually deserve work product protection if the defendants reasonably anticipated litigation. But plaintiffs frequently can overcome that protection for photographs defendants took immediately after the accident – if the scene changed by the time the plaintiffs arranged for their own photographs.

In Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018), plaintiff fell into a construction hole on January 31, 2017. Because of his hospitalization, he did not retain a lawyer until April. Plaintiff sought defendant's accident scene photographs, arguing that "by the time he was able to obtain photographs, the site had changed dramatically." Id. at *15. But the court rejected plaintiff's argument -- noting that defendant's photographs "establish that the work site had already been altered to prevent other similar accidents." Id. In other words, defendant's post-accident photographs were no more valuable than plaintiff's later photographs, because neither one showed the January 31 conditions.

Litigants' efforts to overcome adversaries' work product protection involve timing and other nuances that generally do not arise with the more abstract and absolute attorney-client privilege.

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal

Chapter: 45.405
Case Name: Theidon v. Harvard Univ., Civ. A. No. 15-cv-10809-LTS, 2017 U.S. Dist. LEXIS 82085 (D. Mass. May 30, 2017)
(analyzing a former Harvard professor's lawsuit against Harvard; noting that the plaintiff claimed to have prepared notes of a meeting with another professor to discuss tenure, but that she no longer possessed the original notes – instead having incorporated the notes into a memorandum to her lawyer; holding that Harvard could overcome any work product protection for the notes because they were near-contemporaneous, but ordering an in camera review to assess any privilege protection; "The notes, taken directly after the meeting, are a contemporaneous account. With the notes unavailable, Harvard has met the standard to show substantial need for the later-created, but still much closer in time, quarter-page summary based on the notes."; "Because the quarter-page summary was part of a communication to Theidon's attorney, Theidon shall first produce, within seven days, the summary (not the full timeline document) ex parte under seal for the Court to review. After review, the Court will disclose the document to Harvard, unless upon review the Court perceives a possible privilege issue.")

Case Date Jurisdiction State Cite Checked
2017-05-30 Federal MA

Chapter: 45.405
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "The Underwoods are key witnesses to the accident and the events leading up to it. Accurate recordings of their recollections are of paramount importance to Galloway's ability to prepare his case. . . . While Galloway can secure the Underwoods' sworn statements at this time through depositions, he will receive their recollections only through the imperfect window of two intervening years. A deposition based on two-year-old memories is not the substantial equivalent of a witness statement taken a week after the incident, especially when Galloway was physically incapable of initiating his own contemporaneous investigations due to his injuries.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.405
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Galloway stresses how soon after the accident the statements were taken and how he was unable to initiate his own investigation until after he was discharged from the hospital two months later.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.405
Case Name: Bowling v. Appalachian Elec. Supply, Inc., Case No. 3:13-cv-27347, 2014 U.S. LEXIS 49531 (S.D.W. Va. April 10, 2014)
(analyzing work product issues in a third party insurance context; "In the more than seven years that have elapsed since the accident, Mr. Prince's memory of the finer details surrounding the collision undoubtedly will have faded. The only other contemporaneous statement regarding the accident that can be attributed to Mr. Prince is a two-line summary contained in the Uniform Crash Report. Certainly, Mr. Prince's recorded interview is longer and more detailed than what appears in the accident report.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal WV

Chapter: 45.405
Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *25 (C.D. Cal. Mar. 3, 2014)
("[E]ven if Goldberg's [lawyer, but not counsel for defendants] emails that discussed only his personal disagreements and frustrations were protected as work product, Plaintiff's substantial need for the emails would overcome the protection. Goldberg's emails are contemporaneous evidence of the dispute between Goldberg and Klein[defendant organization's president], which eventually involved Plaintiff and, according to Plaintiff, led to her termination. Such detailed information, not subject to the vagaries of memory and concerning the core events as they were unfolding, is not available from other sources. Depositions will not be the substantial equivalent of Goldberg's emails.")

Case Date Jurisdiction State Cite Checked
2014-03-03 Federal CA B 8/14

Chapter: 45.405
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *9 10 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "[E]ven when a witness is available for deposition, a litigant may be able to establish substantial need for his or her prior statement when that statement was made shortly after the incident at issue.")

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 45.405
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *18-19 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Cuban has also shown that he cannot, without undue hardship, obtain information substantially equivalent to that found in interviews conducted by the SEC in the course of investigating Mamma.com. Unlike for the interviews conducted during the investigation of Cuban, for which he has access to a parallel set of notes (e.g., those taken by Mamma.com's counsel), there is no indication that there are available notes, other than the SEC's, pertaining to the investigation of Mamma.com. Furthermore, because interviews for the Mamma.com investigation occurred in 2004, there is a three-year gap between these interviews and statements and testimony Cuban can access. Compared to the one-year interval between interviews and investigative testimony in the SEC's investigation of Cuban, this three-year gap presents a greater risk that witnesses could have forgotten important details they recalled in 2004. This makes it more likely that the information in testimony available to Cuban is not substantially equivalent to what would be found in the SEC's notes.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.405
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *12-13 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "In addition to having access to notes from some of the very interviews at issue, Cuban also has transcripts of sworn, investigative testimony of the witnesses; has taken his own unsworn, transcribed statements from several witnesses; and has had the opportunity to depose witnesses. . . . Cuban objects that these records do not contain substantially equivalent information because, by the time of these witnesses' investigative testimony and depositions, they may have forgotten information that the SEC has recorded in its notes and summaries of initial interviews. . . . For the witnesses (Fauré and Owen) whom the parties discuss specifically in briefing the instant motion, their initial interviews occurred in December 2006, and they gave investigatory testimony within one year. This comparatively shorter interval makes it less likely that the information in their initial interviews differs from what they recalled when questioned later." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.405
Case Name: Laws v. Stevens Tranp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *11-12 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "The Court also questions (but need not decide) whether plaintiffs have met the other prong of the test for obtaining work product, which is the inability to obtain equivalent information without undergoing undue hardship. . . . [P]laintiffs can still take pictures of the accident location . . . . Additionally, they have pictures of the vehicles taken at the scene. . . . And there is no allegation or proof that Mr. Laws has no recollection, or only a vague one, of the accident.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.405
Case Name: Sorrels v. NCL (Bah.) Ltd., 291 F.R.D. 682, 683 (S.D. Fla. 2013)
(holding that a plaintiff injured on a cruise line could overcome the cruise line's work product protection; "While engaging in discovery, Plaintiffs were informed that Defendant possessed four photographs of the incident scene that had been taken by the ship's security officer approximately 35 minutes after Plaintiff Teresita Sorrels fell on April 13, 2012. Plaintiff now moves the Court to compel Defendant to produce these four photographs."; "[E]ven if the requested materials constitute attorney work product, Plaintiff has demonstrated that she has a substantial need for these materials and cannot obtain their substantial equivalent by other means. Plaintiff seeks these photographs to determine whether there 'were any signs or warnings at the time of the accident.' . . . Because Plaintiff Teresita Sorrels was taken directly to the ship's medical facility after she fell, she had no opportunity to take her own contemporaneous photographs of the scene.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 45.405
Case Name: Gochenour v. Sears, Roebuck & Co., Law No. 28405, slip op. at 1-2, Va. Laws. Wkly. 003-8-149 (Va. Cir. Ct. June 10, 2003)
(assessing a work product protection claim for an incident report prepared by Sears in connection with an accident in which plaintiff was injured by a falling metal display rack; holding that "statements taken when litigation was 'reasonably foreseeable' are protected, even though taken during the ordinary course of business"; holding the "contemporaneous narrative of the events giving rise to the instant cause of action" had an "aura of reliability not found in historical narratives prepared months later"; explaining that "[b]ecause it is a contemporaneous narrative, it cannot be duplicated. It is of peculiar and substantial importance to counsel in evaluating, preparing, and presenting plaintiff's case. It is a potential wellspring to be used in responding to discovery, preparing for testimony, evaluating settlement offers, refreshing recollection, and impeachment. There is no substitute for such a document in the arsenal of discovery available to the plaintiff."; ordering the incident report produced)

Case Date Jurisdiction State Cite Checked
2003-06-10 State VA

Chapter: 45.405
Case Name: Harris v. Skyhook Corp., 8 Va. Cir. 307, 309, 310 (Richmond 1987)
(finding that the party seeking materials had not proven need although two years had passed since the interviews it unsuccessfully sought).").

Case Date Jurisdiction State Cite Checked
1987-01-01 State VA

Chapter: 45.406
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "District courts in this circuit have recognized that statements taken shortly after the event in question are more acute and 'unique' in that they provide an immediate impression of the facts. . . . Defendant UPS was in the unique position of being able to interview key witnesses on the same day of the accident, while the same opportunity was unavailable to Merriweather. . . . Merriweather has shown a substantial need for the written statements by Defendant Jeremy Semmler and Kenny Gregory that were taken on the date of the accident. Accordingly, Merriweather is entitled to their production."; "Unlike the written statements that were given by witnesses to the accident on the date of the accident, the third recorded statement by co-Defendant Anthony Lee was taken by Defendant UPS' insurance adjuster on August 11, 2015, close to three months after the accident. Plaintiff Merriweather has not demonstrated a substantial need for the statement, especially since he still has the opportunity to depose Defendant Anthony Lee. A substantial need for the discovery of work product does not exist where the same information can be obtained by deposition or other discovery methods.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 45.406
Case Name: Merriweather v. UPS, Case No. 3:17-CV-349-CRS-LLK, 2018 U.S. Dist. LEXIS 124383 (W.D. Ky. July 25, 2018)
(analyzing product issues related to a post-accident investigation; "Defendant UPS argues that Merriweather has failed to demonstrate a substantial need for these photographs, which were taken one day after the accident, because it gave Merriweather hundreds of photographs that were taken the day of the accident."; "Indeed, nothing suggests that the withheld photographs contain vital information which can be obtained only by viewing them and not from the other pictures.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal KY

Chapter: 45.406
Case Name: In re Domestic Airline Travel Antitrust Litig., MDL Dkt. No. 2656, Misc. No. 15-1404 (CKK), 2018 U.S. Dist. LEXIS 113795 (D.D.C. July 10, 2018)
(holding that various airline defendants could not discover plaintiffs' work product relating to its earlier settlement with Southwest Airlines; "Defendants' preparation of a defense in this case should not rely upon gaining insight into Plaintiffs' trial strategy; instead, Defendants may ascertain directly relevant factual information from Southwest, which it can then use either to bolster its defense or to challenge it."; "Accordingly, having determined that Defendants may obtain the factual information they seek directly from Southwest, which will avoid any infringement on Plaintiffs' attorney work product protection, this Court OVERRULES the Defendant's objections regarding Interrogatory No. 15 and FULLY ADOPTS the Special Master's Amended Report and Recommendation No. 4, and it is hereby this 10th day of July, 2018.")

Case Date Jurisdiction State Cite Checked
2018-07-10 Federal DC

Chapter: 45.406
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
September 5, 2018 (PRIVILEGE POINT)

Court Rejects a Personal Injury Plaintiff's Effort to Overcome Defendant's Work Product Protection for Accident Scene Photographs

Defendants' accident scene photographs usually deserve work product protection if the defendants reasonably anticipated litigation. But plaintiffs frequently can overcome that protection for photographs defendants took immediately after the accident – if the scene changed by the time the plaintiffs arranged for their own photographs.

In Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018), plaintiff fell into a construction hole on January 31, 2017. Because of his hospitalization, he did not retain a lawyer until April. Plaintiff sought defendant's accident scene photographs, arguing that "by the time he was able to obtain photographs, the site had changed dramatically." Id. at *15. But the court rejected plaintiff's argument -- noting that defendant's photographs "establish that the work site had already been altered to prevent other similar accidents." Id. In other words, defendant's post-accident photographs were no more valuable than plaintiff's later photographs, because neither one showed the January 31 conditions.

Litigants' efforts to overcome adversaries' work product protection involve timing and other nuances that generally do not arise with the more abstract and absolute attorney-client privilege.

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal

Chapter: 45.406
Case Name: Hale v. Emporia State Univ., Case No. 16-cv-4182-DDC-TJJ, 2018 U.S. Dist. LEXIS 26562 (D. Kansas Feb. 20, 2018)
(analyzing protection for a defendant's human resource representative's interview notes of a plaintiff, taken as part of an investigation into racial discrimination; "At the August 28, 2017 scheduling conference with the Court, Plaintiff requested that ESU produce a copy of its internal investigation report referred to as the '350-plus page' investigative report disclosed during a press conference held by ESU. Counsel for ESU agreed to early production of the report, subject to redactions for attorney work product and privilege."; "For the notes Lauber [University assistant HR director] took during the interviews and meetings with the Hales, the Court finds that ESU has demonstrated Lauber's creation of these notes would have been both for the purpose of investigating the racial slur incident and also in anticipation of litigation brought by the Hales. Lauber's primary purpose in preparing these notes would have been in anticipation of litigation with the Hales since they indicated around the early June 2015 timeframe they had retained counsel and were acting upon the advice of an attorney. ESU has shown an underlying nexus between the preparation of Lauber's notes from interviews and meetings with the Hales and this specific litigation. The Court also finds that because one or both of the Hales were present during these meetings and interviews with Lauber, and apparently also have audio recordings of some meetings, they would be aware of the substance of those meetings. Plaintiff therefore cannot show that she has substantial need for the Lauber's interview notes and cannot obtain their substantial equivalent by other means. In addition, the Court finds that Lauber's interview notes would likely contain his mental impressions and opinions in his role as a representative of ESU's general counsel. Under Fed. R. Civ. P. 26(b)(3)(B), the Court is required to 'protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.' The Court concludes Lauber's notes from interviews and meetings with the Hales are not discoverable.")

Case Date Jurisdiction State Cite Checked
2018-02-20 Federal KS
Comment:

key case


Chapter: 45.406
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that defendant could not overcome plaintiff's work product protection; "To the extent the emails and other documents reference particular evidence or factual matters (e.g., autopsy photos, BCI materials, interviews), it appears this information consists of matters of public record, discovery materials already provided by defendants, or information that defendants can obtain without undue hardship through the normal discovery process. Therefore, the Court declines to order the disclosure of the documents set forth in plaintiff's privilege log under Rule 26(b)(3)(A)(ii).")

Case Date Jurisdiction State Cite Checked
2017-07-21 Federal OH

Chapter: 45.406
Case Name: In re Experian Data Breach Litig., SACV 15-01592 AG (DFMx), Slip Op. at 2, 5 (C.D. Cal. May 18, 2017)
(finding that the work product doctrine protected materials created by a forensic consultant hired by Jones Day to investigate Experian's data breach, making it unnecessary to analyze possible privilege protection; holding that: (1) the work product doctrine protected the documents; (2) plaintiffs could not overcome the work product protection; and (3) Experian did not waive the work product protection by disclosing the forensic consultant's report internally and to fellow common interest participant T-Mobile (Experian's client); explaining that "in this circuit, a 'because-of' test is used to determine whether a document was prepared in anticipation of litigation, which means that a document doesn't need to be prepared exclusively for use in litigation."; in supporting its conclusion (2), explaining as follows: "The next inquiry is whether there's an exception to the doctrine in this situation. Plaintiffs' expert concludes in a declaration that Mandiant must have had access to Experian's live servers to do its analysis and since its impossible to go back in time and access those live servers at the moment they were inspected, there's a substantial hardship exception. . . . Those conclusions are based on the expert's opinion and observations of Mandiant's previous data breach reports, which were performed primarily on live, operational networks. . . . But the evidence submitted by Experian shows that Mandiant didn't have access to any of Experian's live systems, networks, or servers when it was investigating to prepare this particular report. . . . Mandiant apparently only observed server images to create its report. And Plaintiffs can through discovery, get those same exact server images and hire their own expert to perform the work Mandiant did. A showing of expense or inconvenience to Plaintiffs in hiring an expert to perform the same analysis isn't sufficient to overcome the protection of the work product doctrine." (emphasis added))

Case Date Jurisdiction State Cite Checked
2017-05-18 Federal CA B 8/17

Chapter: 45.406
Case Name: Fidelity and Deposit Company of Maryland v. First National Community Bankcorp, Civ. A. No. 12-1784, 2016 U.S. Dist. LEXIS 130911 (M.D. Pa. Aug. 8, 2016)
("F&D also has not waived the work-product privilege because the Bank has failed to show it has a substantial need for privileged information. The Bank has had access to information concerning F&D's factual investigation, including the underwriting and claims files, and depositions of employees engaged in the factual investigation. Furthermore, my in camera review revealed Mr. Rush would not be able to provide more relevant, non-privileged information concerning the investigation.")

Case Date Jurisdiction State Cite Checked
2016-08-08 Federal PA

Chapter: 45.406
Case Name: Fidelity and Deposit Company of Maryland v. First National Community Bankcorp, Civ. A. No. 12-1784, 2016 U.S. Dist. LEXIS 130911 (M.D. Pa. Aug. 8, 2016)
("F&D also has not waived the work-product privilege because the Bank has failed to show it has a substantial need for privileged information. The Bank has had access to information concerning F&D's factual investigation, including the underwriting and claims files, and depositions of employees engaged in the factual investigation. Furthermore, my in camera review revealed Mr. Rush would not be able to provide more relevant, non-privileged information concerning the investigation.")

Case Date Jurisdiction State Cite Checked
2016-08-08 Federal PA

Chapter: 45.406
Case Name: IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal District, Dkt. No. 16-cv-00146, 2016 U.S. Dist. LEXIS 42223 (W.D. La. March 29, 2016)
("[W]e find that IFG has not shown that it has a substantial need for the email to prepare its case and that it cannot obtain a substantial equivalent of the content of the email by other means. While IFG asserts that it needs to know the 'extent of misinformation and defamatory comments that have been spread around the Port and Port Rail, Inc., as part of establishing its damages,' we find that these theories can be established by other means.")

Case Date Jurisdiction State Cite Checked
2016-03-29 Federal LA

Chapter: 45.406
Case Name: Patel v. Kensol-Franklin, Inc., Civ. A. No. 3:14-1439, 2016 U.S. Dist. LEXIS 36684 (M.D. Pa. March 22, 2016)
(in a bad faith insurance case, analyzing privilege and work product protection for a post-accident investigation; finding that both protections applied; "'The court notes that Letica's employees could be deposed by plaintiff as fact witnesses regarding their knowledge of the accident. In fact, Letica concedes this point and states that many of its employees had been deposed. . . . Thus, plaintiff is able to obtain the substantial equivalent of the statements of Letica's employees contained in the investigation report by other means. Also, plaintiff's exhibits attached to her instant letter brief . . . Include excerpts from deposition transcripts from Letica's employees.'")

Case Date Jurisdiction State Cite Checked
2016-03-22 Federal PA

Chapter: 45.406
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(holding that defendants could not overcome plaintiff's work product protection for witness interview memoranda; "In regards to the Reports of Interview for Emma Boone and Mary Carroll, both of whom are now deceased, the Defendants still fail to make a sufficient showing of substantial need and undue hardship to compel discovery of this work-product. Although the death of a witness may be enough to show substantial need . . . Defendants have failed to show any measures taken to try to obtain the information from another source. Defendants merely state "Emma Boone and Mary Carroll are deceased.'. . . In several instances, Agent LeFaivre interviewed the care provider or relative of a Bertie Ambulance patient instead of the patient. . . . Thus, it appears to the court that interviews of a patient's care provider or relative could produce the substantial equivalent of an interview with the patient. . . . Defendants fail to show any effort to contact the care providers or relatives of Emma Boone or Mary Carroll. As such, Defendants have failed to meet their burden of proving substantial need and undue hardship to compel the discovery of protected work-product. However, this Order does not preclude Defendants from later making a showing of substantial need and undue hardship.")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 45.406
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(holding that defendants could not overcome plaintiff's work product protection for witness interview memoranda; "In this case, Defendants have failed to meet their burden of showing substantial need and undue hardship for all of the Reports of Interview. Defendants rely on the passage of time between the interviews conducted by Agents Haire and LeFaivre and interviews that could be conducted now by Defendants. . . . However, the passage of time, standing alone, is not always sufficient to establish substantial need. . . . Further, if a witness is available to the other party, discovery is generally not allowed. . . . Here, Defendants have failed to depose any of the witnesses. . . . Although Defendants have attempted to contact some of the witnesses by telephone with no success, 'it is clear that the mere refusal of these witnesses to be interviewed by defendants' counsel does not constitute a sufficient showing of necessity to justify disclosure of otherwise privileged work[-]product.'")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 45.406
Case Name: Perez v. El Tequila LLC, Case No. 12-CV-588-JED-PJC, 2015 U.S. Dist. LEXIS 34174 (N.D. Okla. March 19, 2015)
(finding that the work product doctrine protected oral communications between a government lawyer and a third party's employees; "On December 31, 2014, Defendants deposed Speer and asked him to tell them about his conversation with the Casio expert on July 24. Counsel instructed Speer not to answer these questions on the grounds of work product, attorney-client privilege and counsel's communications with retained expert."; "The interviews of Casio employees at the direction of Plaintiff's counsel are protected by the work-product doctrine. Documents produced to the Court for in camera review establish that the purpose of the interview was for counsel to understand the computer codes reflected on Defendants' time records and to develop a coherent litigation strategy in prosecuting the case. Defendants have not been denied any discoverable information. Defendants have made no showing that the employees -- Deal and Leonhardt -- were unavailable for deposition.")

Case Date Jurisdiction State Cite Checked
2015-03-19 Federal OK

Chapter: 45.406
Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 2015 U.S. Dist. LEXIS 5199 (S.D.N.Y. Jan. 15, 2015)
(finding that the attorney-client privilege and the work product doctrine protected notes and memoranda relating to the witness interviews conducted by the Jenner lawyers during the firm's investigation into General Motors ignition switch incidents; finding that plaintiffs could not overcome GM's work product protection; "Plaintiffs here cannot make that showing as to the Interview Materials as a whole, given the vast amount of materials that New GM has produced or will be producing and given the fact that Plaintiffs are free to depose the witnesses whom the Jenner attorneys interviewed as part of the Valukas investigation.")

Case Date Jurisdiction State Cite Checked
2015-01-15 Federal NY

Chapter: 45.406
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Neither is the Underwoods' statement to police substantially equivalent. Though it is contemporaneous to the accident, it contains significantly less detail than their witness statements. The police statement is eighteen handwritten lines . . . While the two witness statements total sixteen typed pages, Tr. Of Underwoods' Statements. . . . Furthermore, while the Underwoods submitted one statement to police, they were examined by defense counsel independently and consequently provided two distinct statements. The police statement cannot match the level of detail and specificity contained in the Underwoods' verbatim statements, which were also under oath, and thus cannot be considered substantially equivalent.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.406
Case Name: Williams v. Feeney, 8:13CV287, 2014 U.S. Dist. LEXIS 53482 (D. Neb. April 17, 2014)
("At this time, the Court finds that the mere possibility that Feeney's memory has dulled is insufficient to constitute a substantial need. Williams has not yet deposed Feeney to determine if his memory has deteriorated. Deposing Feeney is not an undue hardship and may lead to the substantial equivalent to the work product in question.")

Case Date Jurisdiction State Cite Checked
2014-04-17 Federal NE

Chapter: 45.406
Case Name: Kephart v. ABB, Inc., Civ. A. No. 2:12-668, 2014 U.S. Dist. 51411 (W.D. Pa. April 14, 2014)
(holding the plaintiff injured in a boiler explosion could seek access to documents about the defendant's investigation, because the plaintiff could overcome the defendant's work product protection; "[E]ven if Defendant had established that the drawings were work product created in anticipation of litigation, Plaintiffs have demonstrated the substantial need for access to these drawings given the fact that they did not have the opportunity to conduct an independent investigation of the boiler system and the explosion site.")

Case Date Jurisdiction State Cite Checked
2014-04-14 Federal PA

Chapter: 45.406
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *22 23 (N.D. Cal. Mar. 17, 2014)
("The meeting notes appear to capture the mental impressions of an attorney in the course of defending her client against Plaintiff's lawsuit. . . . Plaintiff admits that he 'could arguably depose the RCPD officers on this topic,' . . .but expresses concern that such testimony would be inferior because the officers' recollection might be poor. This is an ordinary risk that attends many litigations, and does not provide good reason to disclose protected attorney work product reflecting an attorney's mental processes. Plaintiff's request for this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 45.406
Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *25 (C.D. Cal. Mar. 3, 2014)
("[E]ven if Goldberg's [lawyer, but not counsel for defendants] emails that discussed only his personal disagreements and frustrations were protected as work product, Plaintiff's substantial need for the emails would overcome the protection. Goldberg's emails are contemporaneous evidence of the dispute between Goldberg and Klein[defendant organization's president], which eventually involved Plaintiff and, according to Plaintiff, led to her termination. Such detailed information, not subject to the vagaries of memory and concerning the core events as they were unfolding, is not available from other sources. Depositions will not be the substantial equivalent of Goldberg's emails.")

Case Date Jurisdiction State Cite Checked
2014-03-03 Federal CA B 8/14

Chapter: 45.406
Case Name: Union First Mkt. Bank v. Bly, Civ. A. No. 3:13-CV-598, 2014 U.S. Dist. LEXIS 15071, at *26 (E.D. Va. Feb. 6, 2014)
(inexplicably holding that the plaintiff could overcome defendant's work product protection for notes at a meeting, even though plaintiff apparently could depose the participants; "The Court finds that UFMB has shown a substantial need for the work product memorializing the 2012 meeting between Bly, his attorneys, and Williams [former president of plaintiff's Trust & Inv. Mgmt. Division]. Williams is a key witness in this matter. Other than Ruloff's [defendant's lawyer] word, UFMB has no other means of corroborating the content of Williams's statements to Bly and his attorneys in the 2012 meeting. While UFMB currently has access to Williams, at this late time -- within a week of trial -- the Court finds that UFMB cannot, without undue hardship, obtain the substantial equivalent of the information it seeks.")

Case Date Jurisdiction State Cite Checked
2014-02-06 Federal VA B 6/14

Chapter: 45.406
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *14 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "[W]here the witnesses are available and will be deposed, and given that their statements were not contemporaneous to the incident . . ., there are significant hurdles to Claimant's proving substantial need.")

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 45.406
Case Name: Clemmons v. Acad. for Educ. Dev., Civ. A. No. 10-cv-911 (RC), 2013 U.S. Dist. LEXIS 161586, at *5 (D.D.C. Nov. 13, 2013)
("With respect to the materials concerning Ms. Mayo [third-party witness], Defendant has already taken her deposition. This is all to which it is entitled.")

Case Date Jurisdiction State Cite Checked
2013-11-13 Federal DC B 5/14

Chapter: 45.406
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *17-18 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for documents defendant copied during a joint visit to an asbestos site with plaintiff's lawyer; " Here, Plaintiff has not demonstrated that she cannot obtain the exact same copies that Defendants have by conducting her own review of the Hoechst documents. Indeed, it was Plaintiff's counsel who originally secured these documents from Hoechst and shared them with Defendants. There is no indication that Plaintiff now does not have access to the original Hoechst documents from which Defendants' copies were made.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.406
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *12 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "Although Plaintiff might be able to obtain product identification information from witness testimony or Hoechst business records, these would be poor substitutes for photos of the facility because, in the decades between the beginning of Cary's employment at Hoechst and this lawsuit, memories may have faded and business records may have been lost.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.406
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013)
January 15, 2014 (PRIVILEGE POINT)

"Rhode Island State Court Sorts Through Work Product Issues"

Some factual settings give courts the opportunity to carefully and logically apply work product principles. A Rhode Island court confronted such a situation in Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013).

An asbestos plaintiff's lawyer and the defendants' lawyers jointly toured the site where plaintiff's late husband had worked. All the lawyers came equipped with cameras, but the plaintiff's lawyer's camera stopped working – so he took pictures on his cell phone. Defendants refused to turn over their pictures and video footage. The court held as follows: (1) defendants' pictures and videos deserved fact work product protection; (2) defendants could not successfully claim that their pictures and videos deserved the higher opinion work product protection, although the defense lawyers specifically directed their photographer and videographer to record specific items – because plaintiff's lawyer "could have gleaned the same information by listening to the instructions given to the photographer and videographer"; (3) plaintiff could establish "substantial need" for pictures of the worksite, because the "depiction of [the] photos of the asbestos-containing items . . . Is key to one of the essential elements of Plaintiff's prima facie case"; (4) plaintiff could not obtain the "substantial equivalent" of the defense lawyers' pictures, because the cell phone picture's quality was "so poor that it is impossible to read some of the labels on the items photographed"; (5) plaintiff would face an "undue hardship" in attempting to obtain the "substantial equivalent" – because the property had been sold after the tour, and "many of the items the parties photographed are no longer there." Id. At *9, *11, *14, *13.

Courts describe the work product doctrine protection as "intensely practical," and decisions like this highlight that principle.

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI
Comment:

key case


Chapter: 45.406
Case Name: Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013)
December 4, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part II"

Last week's Privilege Point noted that the work product doctrine applies only at certain times, and therefore offers a more limited protection than the attorney-client privilege. The work product doctrine is narrower than the privilege in other ways too.

For instance, work product protection might evaporate, while the attorney-client privilege lasts forever. In Cosmetic Warriors v. Lush Day Spa, LLC, the court explained that some courts protect work product forever, some courts only protect work product created during "closely related" earlier litigation, and some courts only protect work product during the litigation in which it was created. Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013) (not for publication). The court noted that "the Third Circuit has endorsed the 'closely related' view." Id. A few weeks later, a court dealt with another limitation -- adversaries can overcome litigants' work product protection, while the attorney-client privilege provides absolute immunity. In Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013), defendant sought to overcome plaintiff's work product protection for documents created by its FDA consultant. Under the federal rules, adversaries can obtain litigants' work product if they establish "substantial need" for the work product, and their inability to obtain its "substantial equivalent" without "undue hardship." Id. At *33-34 (citing Fed. R. Civ. P. 26(b)(3)). The court rejected defendant's attempt, noting that it could depose other fact witnesses possessing the same information as plaintiff's consultant.

Although the work product doctrine sometimes provides less protection than the attorney-client privilege, in other ways it can be more expansive. Next week's Privilege Point will describe two ways (of many) in which the work product doctrine can apply when privilege protection is unavailable.

Case Date Jurisdiction State Cite Checked
2013-10-23 Federal MA
Comment:

key case


Chapter: 45.406
Case Name: Cosmetic Warriors v. Lush Day Spa, LLC, Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013)
December 4, 2013 (PRIVILEGE POINT)

"Decisions Highlight Important Differences Between the Work Product Doctrine and the Attorney-Client Privilege: Part II"

Last week's Privilege Point noted that the work product doctrine applies only at certain times, and therefore offers a more limited protection than the attorney-client privilege. The work product doctrine is narrower than the privilege in other ways too.

For instance, work product protection might evaporate, while the attorney-client privilege lasts forever. In Cosmetic Warriors v. Lush Day Spa, LLC, the court explained that some courts protect work product forever, some courts only protect work product created during "closely related" earlier litigation, and some courts only protect work product during the litigation in which it was created. Civ. A. No. 13-1697 (WJM), 2013 U.S. Dist. LEXIS 144272, at *6 (D.N.J. Oct. 4, 2013) (not for publication). The court noted that "the Third Circuit has endorsed the 'closely related' view." Id. A few weeks later, a court dealt with another limitation -- adversaries can overcome litigants' work product protection, while the attorney-client privilege provides absolute immunity. In Bryan Corp. v. ChemWerth, Inc., Civ. A. No. 12-10446-MLW, 2013 U.S. Dist. LEXIS 152286 (D. Mass. Oct. 23, 2013), defendant sought to overcome plaintiff's work product protection for documents created by its FDA consultant. Under the federal rules, adversaries can obtain litigants' work product if they establish "substantial need" for the work product, and their inability to obtain its "substantial equivalent" without "undue hardship." Id. at *33-34 (citing Fed. R. Civ. P. 26(b)(3)). The court rejected defendant's attempt, noting that it could depose other fact witnesses possessing the same information as plaintiff's consultant.

Although the work product doctrine sometimes provides less protection than the attorney-client privilege, in other ways it can be more expansive. Next week's Privilege Point will describe two ways (of many) in which the work product doctrine can apply when privilege protection is unavailable.

Case Date Jurisdiction State Cite Checked
2013-10-04 Federal NJ
Comment:

key case


Chapter: 45.406
Case Name: Gov't Emps. Ins. Co. v. Saco,No. CV 2012-5633 (NGG) (MDG), 2013 U.S. Dist. LEXIS 142916, at *4 (E.D.N.Y. Oct. 2, 2013)
(selecting a "trigger date" for documents traded by an insurance company in a third-party bad faith claim context; "Courts in this Circuit have found that 'substantial need' and 'undue hardship' do not exist where the information sought can be obtained through depositions or other discovery methods.")

Case Date Jurisdiction State Cite Checked
2013-10-02 Federal NY B 5/14

Chapter: 45.406
Case Name: DiMaria v. Concorde Entm't, Inc., Civ. No. 12-11139-FDS, 2013 U.S. Dist. LEXIS 112533, at *7-8 (D. Mass. Aug. 9, 2013)
("During the discovery period, the plaintiff received copies of statements taken from the defendant's employees by Boston police on the night of the incident, as well as transcripts of the employees' grand jury testimony the following month. The plaintiff also deposed several of the defendant's employees, none of whom claimed to have forgotten the events in question. In light of the availability of these other resources -- and considering that the plaintiff apparently did not perceive a 'substantial need' to make efforts to secure the documents before deposing the employees who prepared them -- the exception to the work product doctrine is inapplicable here.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal MA B 4/14

Chapter: 45.406
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *10, *11-12 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "But the fact that a fact-finder might be interested in, or even find persuasive, documents protected by work product is not a showing of substantial need or undue hardship. Moreover, the movants have access to whatever they need to address what they describe as 'Chevron's 'ghost writing' allegations.' They have access to former Judge Zambrano, whose declaration they submitted in opposition to Chevron's most recent partial summary judgment motion. They certainly must know how portions of their internal work product found their way into the judgment of the Ecuadorian court. This argument falls well short of establishing either substantial need for nor undue hardship without this material." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 45.406
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *12 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[M]ovants' claim that they have a substantial need for 'documents demonstrating [Chevron's] investigators' involvement in securing the cooperation of . . . Fernando Reyes [witness]' fails. Movants -- since the filing of this motion -- have taken Mr. Reyes' deposition. They have made no showing of either substantial need for or of undue hardship without materials concerning the manner by which Chevron obtained his cooperation." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 45.406
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *15 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "They are perfectly capable of examining and cross-examining allegedly 'flipped' witnesses as to the reasons for any shifts in position. There has been no showing of substantial need or undue hardship.")

Case Date Jurisdiction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 45.406
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *12-13 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "In addition to having access to notes from some of the very interviews at issue, Cuban also has transcripts of sworn, investigative testimony of the witnesses; has taken his own unsworn, transcribed statements from several witnesses; and has had the opportunity to depose witnesses. . . . Cuban objects that these records do not contain substantially equivalent information because, by the time of these witnesses' investigative testimony and depositions, they may have forgotten information that the SEC has recorded in its notes and summaries of initial interviews. . . . For the witnesses (Fauré and Owen) whom the parties discuss specifically in briefing the instant motion, their initial interviews occurred in December 2006, and they gave investigatory testimony within one year. This comparatively shorter interval makes it less likely that the information in their initial interviews differs from what they recalled when questioned later." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.406
Case Name: Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH
Comment:

key case


Chapter: 45.406
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013)
May 8, 2013 (PRIVILEGE POINT)

"Unlike the Attorney-Client Privilege, Work Product Doctrine Protection Can Be Overcome"

Unlike the absolute attorney-client privilege, the work product doctrine provides only qualified protection to non-opinion work product. Fed. R. Civ. P. 26(b)(3)(A)(ii) indicates that an adversary can overcome the protection if it "shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means."

In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783 (D. Or. Feb. 4, 2013), the court found that plaintiffs could overcome the defendants' work product claim for materials generated during an investigation. The court held that the withheld documents "contain potentially critical evidence or information that could lead to critical evidence" – supporting the "substantial need" element. Id. At *17. A couple of weeks later, a court held that plaintiffs involved in an automobile accident could not overcome the work product protection for photographs taken by the trucking company's investigator. Laws v. Stevens Transport, Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159 (S.D. Ohio Feb. 19, 2013). The court concluded that plaintiffs "have not argued that without the pictures, they are unable to present a case of either liability or damages." Id. At *10. Although the photographs were undeniably "helpful to their case, . . . They have not shown that they are 'essential' or 'integral.'" Id. The court also questioned whether plaintiff could not obtain substantially equivalent evidence elsewhere. The court explained that "plaintiffs can still take pictures of the accident location," and also noted that "there is no allegation or proof that [plaintiff] has no recollection, or only a vague one, of the accident." Id. At *11-12.

Because the attorney-client privilege provides absolute protection, courts analyzing that doctrine never engage in analyses like these.

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR
Comment:

key case


Chapter: 45.406
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 42 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "ChemWerth argues that it has a substantial need to obtain the challenged documents because 'they are vital to ChemWerth's claims and defenses in this action, in which ChemWerth alleges that Bryan Corp. and/or Waldman [plaintiff's FDA consultant], alone or in collusion, planned an illegal scheme to blame ChemWerth for Bryan Corp. and/or Waldman's failure to develop a FDA-approvable TS product.'. . . However, ChemWerth has not explained why it could not obtain this information through depositions of fact witnesses.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 45.406
Case Name: Burtch v. Luminescent Sys., Inc. (In re AE Liquidation, Inc.), Ch. 7 Case No. 08-13031 (MFW), Adv. Nos. 10-55460 & -55384 (MFW), 2012 Bankr. LEXIS 5710, at *12 n.1 (Bankr. D. Del. Dec. 11, 2012)
("The Trustee does not assert that he cannot discover the underlying facts contained in the affidavits by interviewing the witnesses himself, and, in fact, he is planning to take their depositions.")

Case Date Jurisdiction State Cite Checked
2012-12-11 Federal DE B 9/13

Chapter: 45.406
Case Name: Hercules Liftboat Co., L.L.C. v. Rice, Civ. A. No. 6:11 cv 02111, 2012 U.S. Dist. LEXIS 141904, at *6 (W.D. La. Sept. 26, 2012)
(finding that an adversary could not overcome a litigant's work product claim for witness statements; "Here, Mr. Rice could have obtained the functional equivalent of the witness statements by deposing the persons from whom statements were obtained. This he did not do. Therefore, he has not proven an inability to obtain the substantial equivalent of the material by other means.")

Case Date Jurisdiction State Cite Checked
2012-09-26 Federal LA B 12/13

Chapter: 45.406
Case Name: Spirit Master Funding, LLC v. Pike Nurseries Acquisition, LLC, 287 F.R.D. 680, 688 (N.D. Ga. 2012)
("[B]ecause Pike may discover the facts forming the basis of Spirit's decision to reject Pike's attempted termination of the lease on the basis that the building was condemned by other means, i.e., through interrogatories and depositions of Spirit's representatives who took part in those decisions, Pike has failed to satisfy its heavy burden of establishing substantial burden, undue hardship, and exceptional circumstances warranting disclosure of documents subject to the work product privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 7/13

Chapter: 45.406
Case Name: In re McDowell, 483 B.R. 472, 496 (Bankr. S.D. Tex. 2012)
("With this alternative available to the UST [United States Trustee] -- the UST can depose the Debtors -- there is not a substantial need at present for the requested documents.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX B 7/13

Chapter: 45.406
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *12-13 (E.D. Va. July 18, 2011)
(finding that plaintiff could not overcome defendant's work product protection; "Second, Plaintiff is not burdened because it can utilize other means to obtain the information that it seeks. Again, MWV has already performed its own testing and is going to have an opportunity to cross examine Doctor Ortega, Rexam's expert witness, about the sole issue of this case: whether Rexam's tube has a crystalline content of less than thirteen percent. Moreover, MWV has its own expert who will testify at trial and, as it acknowledges, 'the jury will hear evidence from the two experts and will need to determine which expert's test protocol is correct.' . . . Accordingly, Plaintiff will not be burdened if it does not have UMinn or Bruker's materials because MWV can use its own expert and, alternatively, question the testimony of Rexam's expert to determine which test protocol is correct and whether Rexam's tube has a crystalline content of less than thirteen percent.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.406
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *7-8 (E.D. Va. July 18, 2011)
("[T]he materials are not subject to an exception to the work product doctrine because Plaintiff lacks a substantial need to them as Rexam has already disclosed samples of its products and MWV will have an opportunity to cross examine Rexam's expert witness.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.406
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *13-14 (E.D. Va. July 18, 2011)
(finding that plaintiff could not overcome defendant's work product protection; "Third, MWV does not have a substantial need for the materials at issue because it will have a substantial equivalent of the information that it seeks. MWV will have an opportunity to cross examine Doctor Ortega regarding the adequacy of the crystallinity testing methods employed. This opportunity severely limits MWV's need for testing information that was provided by UMinn and Bruker, especially because these two witness groups will not be testifying in this case. Therefore, MWV has not shown that it lacks a substantial equivalent to the materials at issue because UMinn and Bruker will not testify and Plaintiff will have an opportunity to cross examine Defendant's expert witness.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.406
Case Name: E.I. DuPont De Nemours and Co. v. Kolon Indus., Inc., 269 F.R.D. 600, 609 (E.D. Va. 2010)
("Kolon has not met its burden. To begin, the Government has responded affirmatively to the Freedom of Information Act ('FOIA') request made by Kolon. And, DuPont has provided to Kolon the information it obtained by way of its own FOIA request. Further, DuPont has supplied substantial discovery to Kolon and Kolon may depose DuPont witnesses as well as Mitchell. Under these circumstances, Kolon cannot be found to have satisfied the record and third factors of the substantial need test for the remainder of the protected information.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 45.406
Case Name: United States v. Halliburton, 266 F.R.D. 130, 132, 133 (E.D. Va. 2010)
(finding that a relator's disclosure statement to the government deserved ordinary work product protection acknowledging "the disagreement of various jurisdictions on the appropriate classification of disclosure statement[s]"; ultimately concluding that the statement deserved ordinary work product; finding that defendant could not overcome the work product protection either because they needed to impeach the relator or because they could obtain a substantial equivalent information elsewhere; "Defendants first argued that they had a 'substantial need' for the Statement to impeach Relator and that they could not obtain 'substantial[ly] equivalent' information elsewhere. In this District, 'the mere surmise that production might reveal impeaching matter [is] not sufficient to justify production' and the seeking 'party must present more than speculative or conclusory statements.'"; "Defendants had ample opportunity examine the Relator regarding the origins of his 'time sheet' allegations, his knowledge regarding the alleged falsification of time sheets, to whom he reported those allegations prior to filing the original Complaint, elicited the names of additional individuals who might have knowledge of any potential fabrication on the part of Relator, and asked a number of other questions in an effort to impeach his credibility. For example, Relator testified that prior to filing his Complaint he spoke with Senate employee named Neil Higgins . . . as well as Dina Rasor and Bob Bauman . . . . These individuals could be deposed regarding the origins of Relator's claims. In light of this, Defendants have not demonstrated both a 'substantial need' for the Statement or an inability to obtain 'substantially equivalent' information contained therein for purposes of impeachment. The ordinary work product protection thus bars discovery of the Statement unless Defendants other arguments prevail.")

Case Date Jurisdiction State Cite Checked
2010-01-01 Federal VA

Chapter: 45.406
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *13-14 n.10 (W.D. Va. Apr. 16, 2009)
("Though not necessary to its determination, the court also finds that even if work product protection applied to documents created before October 2, 2007, Schwarz would still be entitled to them because of 'substantial need.' Fed. R. Civ. P. 26(b)(3)(A)(ii). Schwarz seeks discovery as to when and why Lloyd's decided to disclaim coverage, which is relevant to Schwarz's claims for declaratory judgment, breach of contract, and bad faith. That Schwarz will have the opportunity to depose employees of Lloyd's as well as Lloyd's agents (see supra note 3) does not mean that Schwarz will be able to obtain the 'substantial equivalent [to the documents] by other means.' Id. To the contrary, these documents will be critical for noticing, preparing for, and guiding any such depositions.")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA

Chapter: 45.406
Case Name: Jondahl v. Gasper, 73 Va. Cir. 42, 44, 45 (Va. Cir. Ct. 2007)
(analyzing work product protection in a civil wrongful death action for documents prepared during an earlier criminal proceeding against the defendant; "[T]he plaintiffs also seek discovery of the audiotape of a telephone conversation between the defendant and Liana Workman, a potential witness in the case. The tape was made by the defendant, apparently at the suggestion of the investigator hired by his attorney, Mr. Broccoletti."; "[T]he defendant obviously recorded the conversation with Workman in anticipation of the criminal litigation, at least. And, following the rationale of the Supreme Court of Virginia in Rakes [Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751 (1970)] discovery should not be granted because both sides know of the witness. Additionally, the plaintiffs have not shown that they will be unable to obtain the substantial equivalent of this audiotape without undue hardship. Accordingly, the plaintiffs' motion to compel the audiotape is also overruled.")

Case Date Jurisdiction State Cite Checked
2007-01-01 State VA

Chapter: 45.406
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that E&Y's documents deserved fact work product protection, which plaintiffs could overcome; "The fact that Household decided to conduct a more expansive review does not, however, contradict its assertion that it retained E&Y because of the prospect of litigation. The court is satisfied that Defendants have met their burden of showing that the E&Y documents constitute privileged work product."; "The court agrees that the E&Y documents constitute work product in that E&Y conducted its evaluation as an agent of Household's General Counsel's office. . . . The court is less certain that the documents constitute 'opinion' work product as contemplated by Rule 26, and finds that Household has not met its burden on this issue. As for the fact work product, the court believes that Plaintiffs have met their burden of overcoming the privilege. . . . Plaintiffs have demonstrated a substantial need for the E&Y information in that it may assist Plaintiffs in establishing falsity, scienter, and materiality. Plaintiffs do not have the underlying data E&Y utilized in preparing its report, and without this information, it is not clear that witness depositions would provide Plaintiffs with the substantial equivalent of the materials. Thus, Plaintiffs' motion to compel the E&Y materials is granted.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.406
Case Name: Jaffee Pension Plan v. Household Int'l, Inc., No. 02 C 5893 (N.D. Ill. Dec. 6, 2006)
(analyzing privilege and work product issues related to documents created by and communications with Ernst & Young ("E&Y") and Wilmer Hale during their internal investigation into defendant Household's alleged customer overcharges; concluding that: (1) E&Y's documents deserve privilege protection because it assisted Household's general counsel in providing legal advice, but that the Garner doctrine allowed access by the securities fraud plaintiff class shareholders; and deserved fact work product protection, but that plaintiffs could overcome that protection; (2) Wilmer Hale's documents deserved privilege protection because the firm represented Household although it was retained by an Audit Committee; and also deserved work product protection which plaintiffs could not overcome, and (3) Wilmer Hale did not waive the work product protection by disclosing facts, by disclosing its work product to Household's auditor KPMG, or by disclosing its work product to the SEC under a confidentiality agreement; explaining the court's conclusion that the plaintiffs cannot overcome the work product protection covering WilmerHales' documents; "Plaintiffs claim that they should receive the requested information in any event because they have a substantial need for the materials and will not be able to obtain their substantial equivalent without undue hardship. . . . To the extent Defendants do not intend to introduce the Restructuring Report at trial, however, Plaintiffs have no substantial need for the information for cross-examination purposes."; "Nor have Plaintiffs demonstrated that they cannot obtain the equivalent information without undue hardship. Plaintiffs insist that they cannot recreate the WilmerHale investigation because they are only allowed to take 55 depositions and, thus, cannot depose all of the individuals WilmerHale interviewed. . . . Plaintiffs also lament that witnesses may have forgotten crucial facts and Household may have deleted relevant email messages. . . . Plaintiffs fail to explain, nor does the court see, why they need to depose every WilmerHale interviewee in order to test the law firm's conclusions, especially where Defendants do not intend to make those conclusions part of their defense. . . . Moreover, Plaintiffs have deposed, or have scheduled depositions of nine current or former HMS employees who can testify about the Markell allegations and the conclusions stated in the Restructuring Report. Notably, Plaintiffs have the underlying data KPMG [Household's regular auditor] used to test the accuracy of the Restructuring Report, and the Report itself. Under these circumstances, Plaintiffs have not demonstrated undue hardship for purposes of overcoming the work product privilege.")

Case Date Jurisdiction State Cite Checked
2006-12-06 Federal IL
Comment:

key case


Chapter: 45.406
Case Name: DeHart v. Wal-Mart Stores, E., L.P., Case No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *1, *2-3, *3 (W.D. Va. Jan. 9, 2006)
(in a third-party insurance context, analyzing work product protection for what the court called a "a computer generated diary of the investigation of this incident by Claim Management, Inc., the adjusting company for defendant."; finding the work product doctrine applicable; "Upon review of the document, it appears that application of the work product doctrine is appropriate. The bulk of the entries on the document consist of communications with counsel for plaintiff regarding the claim, and the adjusting company's opinion and evaluation of the claim. As such, application of the work product doctrine appears appropriate."; also finding that plaintiff could not overcome the work product doctrine protection; noting that "defendant already had produced an incident report and witness statement, " and that "plaintiff may revisit the issue if statements by the plaintiff or Harry Wade [Wal-Mart employee] are not contained in that discovery")

Case Date Jurisdiction State Cite Checked
2006-01-09 Federal VA

Chapter: 45.406
Case Name: DeHart v. Wal-Mart Stores, E., L.P., Case No. 4:05cv00061, 2006 U.S. Dist. LEXIS 599, at *1, *2-3, *3 (W.D. Va. Jan. 9, 2006)
(in a third-party insurance context, analyzing work product protection for what the court called "a computer generated diary of the investigation of this incident by Claim Management, Inc., the adjusting company for defendant."; finding the work product doctrine applicable; "Upon review of the document, it appears that application of the work product doctrine is appropriate. The bulk of the entries on the document consist of communications with counsel for plaintiff regarding the claim, and the adjusting company's opinion and evaluation of the claim. As such, application of the work product doctrine appears appropriate."; also finding that plaintiff could not overcome the work product doctrine protection; noting that "defendant already had produced an incident report and witness statement, " and that "plaintiff may revisit the issue if statements by the plaintiff or Harry Wade [Wal-Mart employee] are not contained in that discovery")

Case Date Jurisdiction State Cite Checked
2006-01-09 Federal VA

Chapter: 45.406
Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 576 (W.D. Va. 2006)
(holding in a criminal case that "testimony by the Attorney about what he was told by the Witness" constituted fact work product; finding that the government had not established the basis for overcoming the work product protection; "After reviewing the case law and arguments of the parties, the court concludes that the government has failed to meet its burden, and the motion to quash must be granted. The court finds that the Witness is available to testify before the grand jury about the conversations with the Attorney, a substantial equivalent to the Attorney's testimony. However, the government claims that there is still a substantial need for the Attorney's testimony in order to either bolster or contradict the Witness' testimony. As the United States Court of Appeals for the Second Circuit has noted, this argument is more appropriate in regard to the government's need for trial testimony. . . . The government can establish probable cause by using the testimony of the Witness, without external corroboration of the Witness' testimony. . . . Notably, the government's own explanation of substantial need in this case focuses on a situation in which defense counsel could attack the testimony of the Witness at trial. This concern does not speak to the government's need for the Attorney's testimony before the grand jury." (emphases in original))

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 45.406
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 177 (Va. Cir. Ct. 2005)
(analyzing work product doctrine protection for a post-accident investigation report prepared by a railroad; ultimately concluding that the work product doctrine protection applied; "Plaintiff came to the Court with heavy burden in this regard because at the time of the hearings on this motion he had not yet taken the deposition of Leon Rogers, who made the entries on the memorandum, or of any other with knowledge of this incident.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.406
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "In proceeding, and in her deposition, Hawkins made statements suggesting that she regrets her inability to remember details about the accident. The fact that Hawkins' memory is at issue and that Hawkins' contemporaneous statements regarding the accident are not available to both parties leads the Court to conclude that Massenburg has shown substantial need for the documents.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.406
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 208 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "In the instant circumstances, this court assumes that the loss activity report that Plaintiff seeks is available to Plaintiff from the same or alternate sources for a reasonable fee, so that the loss activity report obtained by Defendant's insurer can be duplicated or obtained from alternate sources. Thus, despite the belief that disclosure of the loss activity report would 'encourage the reduction or elimination of surprises during trial,' in light of Plaintiff's failure to meet his burden of proof, this court finds no need to compel disclosure of such privileged work product information.")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.406
Case Name: Graves v. Southland Corp., No. 4:99CV00036 (E.D. Va. July 14, 1999)
(finding that statements taken by a company's risk management service after an incident were protected by the work product doctrine; further holding that the plaintiff's lawyer had not established that plaintiff could not obtain the substantial equivalent information without undue burden; "Dunn and Nottingham [company employees] are susceptible to being deposed, though neither has been deposed since September 13, 1993, a period of almost six years. Thus, information readily available to plaintiff has not been pursued by plaintiff in a timely fashion.")

Case Date Jurisdiction State Cite Checked
1999-07-14 Federal VA

Chapter: 45.406
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.406
Case Name: Green v. Oakwood Mobile Homes, Inc., 37 Va. Cir. 137, 137 (Va. Cir. Ct. 1995)
(addressing work product protection for a post-accident report; apparently finding that the work product doctrine protected the report; also concluding that the plaintiff could not overcome the work product protection; "Before granting this Motion, it must be shown that plaintiff has a substantial need of these materials and that it would impose upon the plaintiff an undue hardship to obtain the substantial equivalent by other means. Rule 4:1(b)(3). The deposition of this witness has been taken, and a copy of the transcript has been provided to the Court. While the testimony and statements of this witness in the deposition and in the report to the insurer are hardly a model of clarity, they are substantially equivalent. Both parties know the identity of this witness and have an equal opportunity to depose him. Where the witness to the accident is known and available to both sides, discovery should not be granted.")

Case Date Jurisdiction State Cite Checked
1995-01-01 State VA

Chapter: 45.406
Case Name: Smith v. Nat'l R.R. Passenger Corp., 22 Va. Cir. 348, 349, 351-52, 352-53, 353 (Va. Cir. Ct. 1991)
(analyzing work product protection for a post-incident report prepared by a railroad; ultimately finding that the incident report deserved privilege protection, and that the plaintiff could not overcome the protection; "Here defendant conducted its investigation within a few days of the injury in accordance with its normal policy and procedure. It conducts investigations of job injuries for, among other reasons, settlement of claims, correction of safety defects, and for litigation if the case progresses to that point."; "Benson [W.T. Benson, Corporation and Institutional Accident Investigations as Work Product Pursuant to the Rules of the Supreme Court of Virginia, 17 U. Rich. L. Rev. 285, 309 (1983)] advocates that a 'reasonably foreseeable' test be applied by the circuit courts in Virginia to determine what constitutes materials prepared in anticipation of litigation. If a reasonable person in the shoes of the party resisting discovery would have anticipated or reasonably foreseen litigation at the time the material was produced, it should enjoy the qualified protection of Rule 4:1(b)(3). This court finds that test and Benson's rationale for it more consistent with the language and purpose of the rule than does the mechanical 'if it was prepared in the ordinary course of business, it is not protected' analysis found in McDougall. If that were the proper test, how would the investigations, analysis, etc., of the plaintiff's attorney be protected from discovery? Clearly this material is prepared in the usual course of the attorney's business."; concluding that the plaintiff could not overcome the railroad's work product protection; "Here plaintiff was injured while on the job. The evidence establishes that NRPC conducts an investigation of every reported employee injury as soon as possible after its occurrence for several reasons, one of which is that the matter may result in litigation. Applying a reasonably prudent person standard to these facts, the court finds that in the face of the event which gave rise to the motion for judgment, a reasonably prudent railroad employer could anticipate litigation as a result, making the reports which were produced from the investigations of the accident work product protected by Rule 4:1(b)(3)."; "He has been given the names of all persons having knowledge of the injury. His own investigation should produce substantially the same information he seeks from NRPC without undue hardship. What he seeks is the defense case without the effort of his own investigation. He has made no showing of circumstances which would meet those requirements for disclosure; therefore, his motion to compel the production of the investigative reports is overruled.")

Case Date Jurisdiction State Cite Checked
1991-01-01 State VA

Chapter: 45.408
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *102-03 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "[I]t is clear that Chevron will be unable to obtain these documents from the people who were on the ground in Ecuador -- e.g., Fajardo, Prieto, Saenz, and others --and were directly involved in orchestrating these events. Defendants have refused to produce documents or other information from their Ecuadorian agents.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.464
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
(analyzing work product protection for an investigation into a worker's injury; holding that the plaintiff cannot overcome the defendant's work product protection for accident scene photographs because the scene had already been changed before the defendants took their pictures; "Having determined that the Second Report and two sets of photographs are fact work product, the burden shifts to Plaintiff to demonstrate a substantial need for the materials and an inability to secure the substantial equivalent of the materials without undue hardship. Plaintiff speculates that the Second Report contains discoverable information regarding the reasons why Brayman decided to commence work at the Hinton site without first ensuring that employees were protected from open holes by using standard safety devices. Even if true, Plaintiff wholly fails to demonstrate an inability to obtain the same information through other, readily accessible avenues of discovery. For example, Plaintiff can simply depose the decision-makers at Brayman, or Rule 30(b)(6) representatives, and ask them to explain the reasons that Brayman proceeded without the requisite safety devices."; "Similarly, Plaintiff speculates that the photographs should be produced, because they potentially include pictures of the work site as it appeared immediately before Fint's accident. Plaintiff argues that he was hospitalized for months after his fall and did not retain counsel until April 2017. Consequently, by the time he was able to obtain photographs, the site had changed dramatically. While there certainly could be merit to this type of argument, no such merit exists in this case. As Plaintiff pointed out at the hearing, photographs were taken very shortly after Fint's fall, which were attached to the First Report and provided to Plaintiff. These photographs establish that the work site had already been altered to prevent other similar accidents. Not surprisingly, the photographs taken by counsel and the adjuster on February 28, 2017, four weeks after the accident, do not represent the work site as it appeared at the time of Fint's fall. Accordingly, Plaintiff has failed to articulate a substantial need for the photographs. Further, Plaintiff has not demonstrated what, if any, effort he has made to investigate the existence of photographs taken of the site prior to his fall.")

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal WV

Chapter: 45.501
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "The undue hardship prong examines the burden obtaining the information from an alternate source would impose on the party requesting discovery.")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.502
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *9 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Substantial need and undue hardship are related inquiries because it is necessary to define the information for which a party has a substantial need in order to determine whether substantially equivalent information can be obtained without undue hardship.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.503
Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Manitowoc argues that even if the spreadsheet is entitled to work product protection, it would 'suffer undue hardship to obtain the substantial equivalent of the materials by other means,' and therefore, this Court should order production. . . . We disagree. As set forth above, Manitowoc received the full scope of the information to which it is entitled. This information is contained in defendant's answer to Interrogatory No. 15 and other interrogatories.")

Case Date Jurisdiction State Cite Checked
2016-08-26 Federal IL

Chapter: 45.503
Case Name: In re Bard IVC Filters Products Liability Litig., MDL No. 2641, 2016 U.S. Dist. 17583 (D. Ariz. Feb. 11, 2016)
(finding that the work product doctrine protected a report in deaths connected to the defendant's medical device prepared by a former employee obtained by the defendant's lawyer as a consultant; concluding after an in camera review that the report was different from normal health hazard evaluations prepared in the ordinary course of the defendant's business; finding that plaintiffs could not overcome the work product protection; "The Court finds this argument wholly unpersuasive. Plaintiffs essentially concede that they can create the substantial equivalent of the Report through their own experts, but argue -- in this substantial and well-funded MDL proceeding -- that they should not be put to the time and expense of retaining their own experts. If this were a sufficient 'special showing' to overcome work product protection . . . The protection would be lost in every case where the opposing side would have to expend meaningful resources to obtain the substantial equivalent of the work product. This is not the law.")

Case Date Jurisdiction State Cite Checked
2016-02-11 Federal AZ

Chapter: 45.503
Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
("[T]he undersigned concludes that the DAPs [Direct Action Plaintiffs] have failed to show sufficient need or substantial hardship that would justify invading the work product protected identities of Thomson's internal investigation interviewees.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal CA

Chapter: 45.503
Case Name: Shionogi & Co. v. Intermune Inc., No. C 12 03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *5 (N.D. Cal. Dec. 5, 2012)
(finding that the work product doctrine protected plaintiff's translation of Japanese documents into English; "Defendant has not shown a substantial need or undue hardship. Defendant focuses on the cost of translations, but such costs do not ordinarily constitute an undue hardship and Defendant has not established that translations will here. Moreover, Defendant has not shown a substantial need to piggyback on Plaintiff's translations because it can obtain its own.")

Case Date Jurisdiction State Cite Checked
2012-12-05 Federal CA B 9/13

Chapter: 45.503
Case Name: Meadwestvaco Corp. v. Rexam PLC, Case No. 1:10cv511 (GBL/TRL), 2011 U.S. Dist. LEXIS 78028, at *12-13 (E.D. Va. July 18, 2011)
(finding that plaintiff could not overcome defendant's work product protection; "Second, Plaintiff is not burdened because it can utilize other means to obtain the information that it seeks. Again, MWV has already performed its own testing and is going to have an opportunity to cross examine Doctor Ortega, Rexam's expert witness, about the sole issue of this case: whether Rexam's tube has a crystalline content of less than thirteen percent. Moreover, MWV has its own expert who will testify at trial and, as it acknowledges, 'the jury will hear evidence from the two experts and will need to determine which expert's test protocol is correct.' . . . Accordingly, Plaintiff will not be burdened if it does not have UMinn or Bruker's materials because MWV can use its own expert and, alternatively, question the testimony of Rexam's expert to determine which test protocol is correct and whether Rexam's tube has a crystalline content of less than thirteen percent.")

Case Date Jurisdiction State Cite Checked
2011-07-18 Federal VA B 3/13

Chapter: 45.504
Case Name: In re Aggrenox Antitrust Litig., No. 3:14-md-02516, 2018 U.S. Dist. LEXIS 22860 (D. Conn. Feb. 12, 2018)
(rejecting a motion to certify an appeal under 28 U.S.C. § 1291; "With respect to 'undue hardship,' I observed that '[w]hat hardship is 'undue' depends on both the alternative means available and the need for continuing protection from discovery.'")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal CT

Chapter: 45.504
Case Name: JDS Therapeutics, LLC v. CVS Pharmacy, Inc., 15-cv-4365 (JSR), 2015 U.S. Dist. LEXIS 145634 (S.D.N.Y. Oct. 22, 2015)
(holding that products tests can serve work product protection; "This entreaty is unpersuasive, however, because, as plaintiffs observe, any expert tests that they intend to use as evidence in this action will be timely disclosed to defendant in accordance with the expert disclosure deadlines set in the case management plan. Moreover, defendant is perfectly capable of testing its own products for the ingredient at issue, and 'where a party has the ability to 'perform its own tests', '[s]uch testing would not be [considered] an undue hardship.'")

Case Date Jurisdiction State Cite Checked
2015-10-22 Federal NY

Chapter: 45.504
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "As a general rule, the fact that a deposition may be expensive is not sufficient to compel discovery.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 45.504
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; finding the "at issue" doctrine inapplicable; finding that the defendants could not overcome the work product protection for E&Y's background documents; "As to hardship, their argument cites an inflated cost for the Trustee's production of the Report . . . And provides no estimate of the cost they would incur examining the same documents to rebut the conclusions in the Report.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY

Chapter: 45.504
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
(holding that post-accident witness statements deserved fact but not opinion work product protection, which the plaintiff could overcome; "Galloway stresses how soon after the accident the statements were taken and how he was unable to initiate his own investigation until after he was discharged from the hospital two months later.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 45.504
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013)
January 15, 2014 (PRIVILEGE POINT)

"Rhode Island State Court Sorts Through Work Product Issues"

Some factual settings give courts the opportunity to carefully and logically apply work product principles. A Rhode Island court confronted such a situation in Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188 (R.I. Super. Ct. Nov. 6, 2013).

An asbestos plaintiff's lawyer and the defendants' lawyers jointly toured the site where plaintiff's late husband had worked. All the lawyers came equipped with cameras, but the plaintiff's lawyer's camera stopped working – so he took pictures on his cell phone. Defendants refused to turn over their pictures and video footage. The court held as follows: (1) defendants' pictures and videos deserved fact work product protection; (2) defendants could not successfully claim that their pictures and videos deserved the higher opinion work product protection, although the defense lawyers specifically directed their photographer and videographer to record specific items – because plaintiff's lawyer "could have gleaned the same information by listening to the instructions given to the photographer and videographer"; (3) plaintiff could establish "substantial need" for pictures of the worksite, because the "depiction of [the] photos of the asbestos-containing items . . . Is key to one of the essential elements of Plaintiff's prima facie case"; (4) plaintiff could not obtain the "substantial equivalent" of the defense lawyers' pictures, because the cell phone picture's quality was "so poor that it is impossible to read some of the labels on the items photographed"; (5) plaintiff would face an "undue hardship" in attempting to obtain the "substantial equivalent" – because the property had been sold after the tour, and "many of the items the parties photographed are no longer there." Id. At *9, *11, *14, *13.

Courts describe the work product doctrine protection as "intensely practical," and decisions like this highlight that principle.

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI
Comment:

key case


Chapter: 45.504
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *13 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "Plaintiff cannot now return to the Hoechst property to obtain her own photos of Cary's work environment, nor could she have returned at any time after the original June 23, 2011 site inspection. Management at the Hoechst property informed Plaintiff in 2011 that June 23, 2011 was the only date on which the parties could visit the property because the property was to be sold the following week. Thus, Plaintiff could not have scheduled another site inspection before the transfer of ownership. Now that the property is under new ownership, many of the items the parties photographed are no longer there. Consequently, it would indeed constitute an undue hardship for Plaintiff now to track down where Hoechst sent those items, particularly given that some of them may have been discarded.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.504
Case Name: In the Matter of New York City Asbestos Litig.: Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 40000/88,9535, 109 A.D. 3d 7, 966 N.Y.S. 2d 420, 2013 N.Y. App. Div. LEXIS 4036 (N.Y. Sup. Ct. 1d June 6, 2013)
(concluding that plaintiffs could satisfy the crime-fraud standard, and therefore ordering in camera review of defendant Georgia-Pacific's communications expert involved in authoring favorable articles; "GP funded these studies in 2005 to aid in its defense of asbestos-related lawsuits. The studies were performed by experts from various organizations, who, among other things, recreated GP's historical joint compound product for the purpose of testing its biopersistence and pathogenicity. To facilitate the endeavor, GP entered into a special employment relationship with Stewart Holm, its Director of Toxicology and Chemical Management, to perform expert consulting services under the auspices of its in-house counsel, who also was significantly involved in the prepublication review process."; "Holm coauthored nearly all of the studies, which were intended to cast doubt on the capability of chrysotile asbestos to cause cancer. On the two articles that he did not coauthor, he and GP's counsel participated in lengthy 'WebEx conferences" in which they discussed the manuscripts and suggested revisions. Despite this extensive participation, none of the articles disclosed that GP's in-house counsel had reviewed the manuscripts before they were submitted for publication."; "The foregoing constitutes a sufficient factual basis for a find that the relevant communications could have been in furtherance of a fraud, and the motion court properly confirmed the recommendation directing in camera review of the internal documents."; finding that plaintiffs could overcome any work product protection for materials related to the article; "Plaintiffs will be prejudiced if they are prevented from discovering the data, protocols, process, conduct, discussion, and analyses underlying these studies. A significant expenditure of time and money would be required to duplicate the studies, if they could be exactly duplicated at all, whereas scrutiny of the underlying data may provide a permissible manner in which to attack the findings that would be consistent with the intent of the CMO to minimize the cost of and streamline discovery.")

Case Date Jurisdiction State Cite Checked
2013-06-06 State NY

Chapter: 45.504
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 43 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "ChemWerth's assertion that it will suffer undue hardship if it is forced to obtain substantially equivalent information by other means is equally unconvincing. 'Neither inconvenience nor expense constitute sufficient cause to find undue hardship.' . . . Therefore, such matters as travel or deposition costs are not sufficient to establish undue hardship. Moreover, nothing in this case appears to present any special circumstances that would preclude ChemWerth from obtaining all of the relevant information through the ordinary discovery process.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 45.504
Case Name: Shionogi & Co. v. Intermune Inc., No. C 12 03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *5 (N.D. Cal. Dec. 5, 2012)
(finding that the work product doctrine protected plaintiff's translation of Japanese documents into English; "Defendant has not shown a substantial need or undue hardship. Defendant focuses on the cost of translations, but such costs do not ordinarily constitute an undue hardship and Defendant has not established that translations will here. Moreover, Defendant has not shown a substantial need to piggyback on Plaintiff's translations because it can obtain its own.")

Case Date Jurisdiction State Cite Checked
2012-12-05 Federal CA B 9/13

Chapter: 45.504
Case Name: Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012)
February 27, 2013 (PRIVILEGE POINT)

"Can Translations of Foreign Documents into English Ever Deserve Work Product Protection?"

Although the attorney-client privilege generally protects only confidential communications between clients and their lawyers, the work product doctrine can provide a far broader range of protection. Among other things, work product protection does not depend on a lawyer's participation, or on confidentiality.

In Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012), the court found that a party's translation of Japanese documents into English deserved work product protection, because plaintiff translated the documents "in furtherance of preparing Plaintiff's case." The court further held that the identity of those documents plaintiff thought important enough to translate also deserved work product protection. The court rejected defendant's effort to overcome plaintiff's work product protection – noting that defendant "focuses on the cost of translations, but such costs do not ordinarily constitute an undue hardship" that would justify overcoming the plaintiff's work product protection. Id. At *5. The court concluded that "Defendant has not shown a substantial need to piggyback on Plaintiff's translations because it can obtain its own." Id.

The work product doctrine rests on a fairly modest purpose – each litigant should prepare itself for litigation or trial, rather than "piggyback" on the other side's work.

Case Date Jurisdiction State Cite Checked
2012-12-05 Federal CA
Comment:

key case


Chapter: 45.504
Case Name: Hawkins v. Norfolk S. Ry., 71 Va. Cir. 285, 290 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "Undue hardship considers the burden on the requesting party, here Defendant, to find the requested information from an alternate source.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 45.504
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "'Examples of undue hardship include instances when witnesses cannot recall statements contained in interviews.' In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982). 'Unusual expense involved in obtaining equivalent information is another factor that may establish undue hardship.' Fletcher, 194 F.R.D. at 671 (quoting Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984)).")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.504
Case Name: A.H. Robins Co. v. Aetna Cas. & Sur. Co., No. G 3321-2, 1981 WL 180501, at *7-8 (Va. Cir. Ct. Feb. 19, 1981)
(emphasizing that the delay a party would face in obtaining the substantial equivalent is more important in the analysis than the money that would be required; ordering production of an insurance carrier's computer database of documents and computer model after redaction of opinion work product)

Case Date Jurisdiction State Cite Checked
1981-02-19 State VA

Chapter: 45.504
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 477, 478, 479, 480 (Va. Cir. Ct. 1979)
(analyzing work product protection for witness statements taken by a railroad after an industrial accident; ultimately finding that the statements deserved work product protection, but that the plaintiff could overcome the protection; "The purpose of the investigation was twofold: (1) in order to furnish a report of the accident to the Department of Transportation, and (2) in order to prepare for anticipated litigation."; "The court is of opinion that these statements are a part of the attorney's work product even though they were not taken solely in anticipation of litigation."; "In the present case, the statements in question were taken immediately after the accident. Indeed, Mr. Gibson's statement (being that of a participant in the accident) was taken on the same date as the accident. Four of the persons whose statements were taken are defendant's employees. The defendant has a rule which prohibits their employees from talking to the plaintiffs and their attorney. These four employees refuse to cooperate. Only Mr. Sandridge made any statement and his was couched in language which tends to create suspicions."; "It is true, as argued by the defendant, that plaintiffs are at liberty to take discovery depositions of these persons, but this means is expensive and time consuming, and if, as indicated by Mr. Sandridge, a person knows nothing about the case, it would be an exercise in futility.")

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA B 12/09

Chapter: 45.504
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 480 (Va. Cir. Ct. 1979)
(holding that work product protection may be overcome upon a finding of substantial need; the plaintiff's taking of depositions would be "expensive and time consuming")

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA

Chapter: 45.504
Case Name: Rakes v. Fulcher, 210 Va. 542, 546-47, 172 S.E.2d 751, 755-56 (1970)
(noting that work product protection is not overcome by "[t]he mere assertion by affidavit that discovery is necessary for a movant to investigate fully and prepare his case"; finding that the fact that counsel was hired shortly before a trial did not justify overcoming the protection). But see Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 480 (Botetourt 1979) (holding that work product protection may be overcome upon a finding of substantial need; the plaintiff's taking of depositions would be "expensive and time consuming")

Case Date Jurisdiction State Cite Checked
1970-01-01 State VA

Chapter: 45.505
Case Name: Leakey v. The Setai Group LLC, 151298/2014, 2017 N.Y Misc. LEXIS 3215, 2017 NY Slip Op 31806(U) (N.Y. Sup. Ct. Aug. 28, 2018)
(holding that a non-party witnesses affidavit deserved fact rather than opinion work product protection; "[T]his court declines to compel disclosure of the non-party witness affidavits at this time, since Plaintiff failed to meet her burden of showing the she is unable, without undue hardship, to obtain the substantial equivalent of the affidavits by other means. Defendants provided Plaintiff with the last known addresses and phone numbers of multiple former employee non-party witnesses. Plaintiff concedes that she has information to believe that at least one non-party witness lives out of the state but Plaintiff failed to secure an open commission to take the deposition of this witness. Plaintiff also failed to show her due diligence of securing any witness for a deposition as Plaintiff has not served any non-party witness with a deposition subpoena. Furthermore, Plaintiff failed to support her conclusory argument that the non-party witnesses are unresponsive as Plaintiff failed to include any supporting documentation, such as a call log, returned letters, postal search, or affidavit from a private investigator detailing his or her due diligence to search for the witnesses. As such, the court grants Defendants' motion for a protective order. Nevertheless, to avoid additional motion practice, Defendants, at their discretion, may produce the non-party affidavits subject to redactions of any privileged or confidential information.")

Case Date Jurisdiction State Cite Checked
2018-08-28 State NY

Chapter: 45.505
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
(holding that plaintiff had a substantial need for work product because the CEO of Ottomotto pleaded the Fifth Amendment; "[I]n light of Levandowski's refusal to answer questions or produce documents on the basis of his Fifth Amendment privilege, Waymo has demonstrated a substantial need for fact work product reciting Levandowski's statements or attaching documents/materials found on Levandowski's devices or that Levandowski otherwise provided Stroz.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA
Comment:

key case


Chapter: 45.505
Case Name: Rogers v. Span Systems, Civ. A. No. 16-12165-DPW, 2017 U.S. Dist. LEXIS 68997 (D. Mass. May 5, 2017)
(ordering plaintiff to produce contemporary witness statements by a third party; "Assuming, without deciding, that the witness statements at issue here fall within the scope of the work product doctrine, this court finds that the defendant has established both a substantial need for statements at issue, and that it would not be possible to obtain their substantial equivalent without undue hardship. The statements were taken from witnesses near the time of the incident in question. 'Such statements are unique in that they provide a contemporaneous impression of the facts.'. . . Furthermore, the defendant has made an effort to speak with the witnesses independently, and has shown that the passage of time has made it 'practically impossible' to obtain the substantial equivalent of the statements at this point in the litigation. . . . Therefore, its motion to compel the production of the third-party witness statements of Messrs. Puopolo and DaSilva is allowed.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal MA

Chapter: 45.505
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(holding that defendants could not overcome plaintiff's work product protection for witness interview memoranda; "In regards to the Reports of Interview for Emma Boone and Mary Carroll, both of whom are now deceased, the Defendants still fail to make a sufficient showing of substantial need and undue hardship to compel discovery of this work-product. Although the death of a witness may be enough to show substantial need . . . Defendants have failed to show any measures taken to try to obtain the information from another source. Defendants merely state "Emma Boone and Mary Carroll are deceased.'. . . In several instances, Agent LeFaivre interviewed the care provider or relative of a Bertie Ambulance patient instead of the patient. . . . Thus, it appears to the court that interviews of a patient's care provider or relative could produce the substantial equivalent of an interview with the patient. . . . Defendants fail to show any effort to contact the care providers or relatives of Emma Boone or Mary Carroll. As such, Defendants have failed to meet their burden of proving substantial need and undue hardship to compel the discovery of protected work-product. However, this Order does not preclude Defendants from later making a showing of substantial need and undue hardship.")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 45.505
Case Name: United States v. Bertie Ambulance Service, Inc., No. 2:14-CV-53-F, 2015 U.S. Dist. LEXIS 83537 (E.D.N.C. June 25, 2015)
(holding that defendants could not overcome plaintiff's work product protection for witness interview memoranda; "In this case, Defendants have failed to meet their burden of showing substantial need and undue hardship for all of the Reports of Interview. Defendants rely on the passage of time between the interviews conducted by Agents Haire and LeFaivre and interviews that could be conducted now by Defendants. . . . However, the passage of time, standing alone, is not always sufficient to establish substantial need. . . . Further, if a witness is available to the other party, discovery is generally not allowed. . . . Here, Defendants have failed to depose any of the witnesses. . . . Although Defendants have attempted to contact some of the witnesses by telephone with no success, 'it is clear that the mere refusal of these witnesses to be interviewed by defendants' counsel does not constitute a sufficient showing of necessity to justify disclosure of otherwise privileged work[-]product.'")

Case Date Jurisdiction State Cite Checked
2015-06-25 Federal NC

Chapter: 45.505
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("The court agrees that broad unsubstantiated assertions of unavailability or faulty memory are insufficient to arise to a substantial need. However, in this case, the Plaintiffs have sought production of documents to refresh the recollection of witnesses who are no longer employed in their relevant positions with ACE. Thus, it is reasonable to conclude that these witnesses may be unable to remember facts relevant to the Plaintiffs' deposition. Further, the Plaintiffs have indicated that the depositions will take place in Canada, To promote efficiency, and prevent repeated depositions, the court finds that the Plaintiffs have presented more than a mere unsubstantiated assertion of faulty memory. Thus, the Plaintiffs have a substantial need for said documents.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 45.505
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Angelica has raised concerns about the degraded memory of potential witnesses after three years but has failed to point to a specific instance of an unavailable witness or a witness who cannot recall the events in question.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 45.505
Case Name: Vazquez v. City of New York, 10-CV-6277 (JMF), 2014 U.S. Dist. LEXIS 160270 (S.D.N.Y. Nov. 14, 2014)
(analyzing work product protection for witness interview statements; "The documents largely consist of statements made by Gilbert Vega, and thus constitute factual work product. Further, in light of Vega's significance to the case and the fact that Plaintiff has and had limited access to him, Plaintiff has shown substantial need.")

Case Date Jurisdiction State Cite Checked
2014-11-14 Federal NY

Chapter: 45.505
Case Name: Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 U.S. Dist. LEXIS 50741 (N.D. Cal. April 10, 2014)
(analyzing work product protection for documents created after separate work-related injuries; "Plaintiff demonstrates a substantial need for the material in light of the fact that witnesses do not recall any details of the incident or the contents of the EIS Report Witness Statements, nor did they review their statements before being deposed.")

Case Date Jurisdiction State Cite Checked
2014-04-10 Federal CA

Chapter: 45.505
Case Name: Narog v. City of Redwood City, No. C-13-03237 DMR, 2014 U.S. Dist. LEXIS 36193, at *22 23 (N.D. Cal. Mar. 17, 2014)
("The meeting notes appear to capture the mental impressions of an attorney in the course of defending her client against Plaintiff's lawsuit. . . . Plaintiff admits that he 'could arguably depose the RCPD officers on this topic,' . . .but expresses concern that such testimony would be inferior because the officers' recollection might be poor. This is an ordinary risk that attends many litigations, and does not provide good reason to disclose protected attorney work product reflecting an attorney's mental processes. Plaintiff's request for this document is denied.")

Case Date Jurisdiction State Cite Checked
2014-03-17 Federal CA B 8/14

Chapter: 45.505
Case Name: Cary v. 3M Co., C.A. No. PC 10-3263, 2013 R.I. Super. LEXIS 188, at *13 (R.I. Super. Ct. Nov. 6, 2013)
(analyzing work product protection for photos and video prepared when defendant and plaintiff jointly visited an asbestos site, after which plaintiff sought defendants' photos and video because plaintiff's lawyer's cameras did not work properly during the visit; "Plaintiff cannot now return to the Hoechst property to obtain her own photos of Cary's work environment, nor could she have returned at any time after the original June 23, 2011 site inspection. Management at the Hoechst property informed Plaintiff in 2011 that June 23, 2011 was the only date on which the parties could visit the property because the property was to be sold the following week. Thus, Plaintiff could not have scheduled another site inspection before the transfer of ownership. Now that the property is under new ownership, many of the items the parties photographed are no longer there. Consequently, it would indeed constitute an undue hardship for Plaintiff now to track down where Hoechst sent those items, particularly given that some of them may have been discarded.")

Case Date Jurisdiction State Cite Checked
2013-11-06 State RI B 5/14

Chapter: 45.505
Case Name: Blais v. Cheramie Marine Mgmt., Inc., Civ. A. No. 12-2736 SECTION "R" (2), 2013 U.S. Dist. LEXIS 111307, at *7-8 (E.D. La. Aug. 7, 2013)
("There is no indication that these three witnesses, who remain employed by defendant, are now unavailable to be deposed or to otherwise provide their version of relevant events without undue hardship or that their recollection is now so poor that only their previously obtained statements -- as opposed to their deposition testimony -- will suffice. Before compelling the production of what clearly appears to be work product, I will require plaintiff to take the depositions of these witnesses or obtain sworn statements of his own, reserving plaintiff's right to move again for production of one or more of the statements if the depositions fail to provide the substantial equivalent or their recollection of relevant events must be refreshed by the statements.")

Case Date Jurisdiction State Cite Checked
2013-08-07 Federal LA B 4/14

Chapter: 45.505
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *23 (M.D.N.C. Apr. 30, 2013)
("'Plaintiff has demonstrated a "substantial need" for the requested information based upon its relevance and importance to her claims and the fact that Plaintiff has unsuccessfully (due to Defendants' objections to written discovery and/or at other depositions) tried to obtain the information through other means.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 45.505
Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *14 (W.D. Pa. Apr. 3, 2013)
("The Third Circuit has narrowly found 'sufficient necessity of "good cause" to overcome the work-product protection' for a deceased witness, but found no such exception for memoranda and written work-product from living witnesses." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 45.505
Case Name: SEC v. Nadel, No. CV 11-215 (WFK) (AKT), 2013 U.S. Dist. LEXIS 36251, at *4, *5, *7, *8 (E.D.N.Y. Mar. 15, 2013)
("A party seeking to compel disclosure of interview notes must, at a minimum, show that the interviewees are not available for questioning."; "Here, Defendants had the opportunity to depose all of the witnesses in the case. Although Defendants argue that these witnesses 'fail[ed] to testify about the substance of their interviews'. . . it is the witnesses' recollection of the operative facts and circumstances of the case that is relevant, not their ability to recall the specifics of after-the-fact interviews. Defendants do not identify any relevant facts that the witnesses could not provide at their depositions. All of the examples provided pertain to the interviews themselves, not the underlying facts of the case. . . . Because Defendants do not identify a particular area of inquiry upon which the witnesses could not provide testimony, Defendants have not made the required highly persuasive showing. Indeed, Defendants have not even satisfied the more lenient 'substantial need' standard."; "The witnesses have not invoked their Fifth Amendment privilege, nor have Defendants been denied access to the witnesses' information in any other way."; "In the instant case, the witness depositions have not suggested any inconsistencies or gaps in memory with respect to relevant information. It bears repeating that the interviews themselves are not relevant -- only the factual information recounted in the interviews is relevant. Moreover, other courts have held that the the [sic] desire to use work product for impeachment purposes does not constitute 'substantial need.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.505
Case Name: Laws v. Stevens Tranp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *11-12 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "The Court also questions (but need not decide) whether plaintiffs have met the other prong of the test for obtaining work product, which is the inability to obtain equivalent information without undergoing undue hardship. . . . [P]laintiffs can still take pictures of the accident location . . . . Additionally, they have pictures of the vehicles taken at the scene. . . . And there is no allegation or proof that Mr. Laws has no recollection, or only a vague one, of the accident.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.505
Case Name: Laws v. Stevens Transp., Inc., Case No. 2:12-cv-544, 2013 U.S. Dist. LEXIS 22159, at *8-9 (S.D. Ohio Feb. 19, 2013)
(holding that the work product doctrine protected photographs of an accident scene taken the day of an accident, and that plaintiff could not overcome the protection; "The plaintiffs must shoulder the burden of showing that they have substantial need of these photographs and that they are essentially unable to obtain their equivalent.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 45.505
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 43 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "ChemWerth's suggestion that Dr. Waldman [plaintiff's FDA consultant] is unlikely to testify truthfully because he has been named as a third-party defendant in the case is entirely unpersuasive. . . . There is nothing in the record before this court to suggest that Dr. Waldman or any other witness would lie under oath simply because he has an interest in the outcome of the litigation. Accordingly, ChemWerth's challenge to Dr. Waldman's credibility provides no support for its claim of substantial need.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 45.505
Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 329 (M.D. Pa. 2013)
("Whether such material is discoverable typically turns on whether the witness is available for deposition.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 45.505
Case Name: Fields v. City of Chi., Case No. 10 C 1168, 2012 U.S. Dist. LEXIS 181642, at *9-10 (N.D. Ill. Dec. 26, 2012)
("Fields has made the necessary showing; the question is not close. He attempted to obtain the information by interrogatory, and the City responded by objecting on the basis of (among other things) undue burden. Even after the Court ordered the City to answer, it repeated its objections, including the undue burden objection. Fields then took the deposition of Sergeant Flores, whom the City presented for deposition on these particular points knowing full well that it would interpose privilege and work product objections when Fields' counsel predictably asked for the sources of the information at issue. That made Flores useless as a source of information on these points. Short of deposing everyone in the lengthy laundry list the City provided identifying the persons who had custody of investigative materials at some point in time, there is no other way for Fields to obtain the information he seeks and legitimately needs. Requiring Fields to take that course would be the very definition of 'undue hardship' (indeed, though not necessary to the Court's determination of the point, the City effectively admitted as much in its burdensomeness objections to the interrogatories).")

Case Date Jurisdiction State Cite Checked
2012-12-26 Federal IL B 9/13

Chapter: 45.505
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *11 (E.D. Va. Sept. 14, 2009)
("[T]he Court in Hickman noted that 'production might be justified where the witnesses are no longer available or can be reached only with difficulty.' 329 U.S. at 511. Fed. R. Evid. 804(a)(3) defines 'unavailability' as encompassing the situation in which the declarant 'testifies to a lack of memory of the subject matter of the declarant's statement.' Though that analysis arose in the hearsay context, it applies with equally persuasive logic to deposition of a forgetful witness. If a witness has no memory with which to answer questions about an incident, for all practical purposes the witness is unavailable under Hickman, and that unavailability weighs on the side of requiring that the fact-work-product interview be disclosed.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.505
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *16-17 (E.D. Va. Sept. 14, 2009)
("Document 19 is an interview with Patricia Ferguson, a registered nurse at MCV, conducted three days after the decedent died on December 27, 2006. On May 29, 2009, more than two years and five months after the incident, the Plaintiffs deposed Nurse Ferguson. According to the Defendants, this deposition covered 213 pages. . . . At her deposition, in response to questions such as whether or not she had spoken to police, whether handcuffs were used, who else was involved in the incident, Nurse Ferguson responded with some version of 'I can't remember.' . . . . The Plaintiffs allege, and the Defendants do not dispute, that Nurse Ferguson was a 'crucial participant and eyewitness to the events surrounding John Sanford's death.' She is alleged to have placed the initial call to the VCU Police for help, and to have started an IV on the decedent at the time of his restraint. . . . Nurse Ferguson demonstrated a difficulty in remembering evidence that rendered her practically unavailable to the Plaintiffs, despite the considerable efforts they appear to have taken to coax information out of her. It is possible that the deposition produced some useful information. However, this Court does not consider it substantially equivalent to an interview conducted three days after the incident, while the events were still fresh in Nurse Ferguson's mind. Thus, the Plaintiffs have shown substantial need for Document 19.")

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA

Chapter: 45.505
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *11 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "Plaintiffs have met their burden of proof in demonstrating that they have a substantial need for Document 42, which contains a chronicle of events by Deborah Boiling [defendant doctor] and Jackie Wright [defendant nurse]. These are interviews which were prepared on the day of John Charles Sanford's death. When the plaintiffs had the opportunity to depose both witnesses approximately two years after the accident, it was revealed that neither witness had specific memory of certain events that took place on the day of decedent's death. Therefore, the Court holds that Document 42 is discoverable.")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA B 12/10

Chapter: 45.505
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 175-76, 176, 177 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; "NPBL's [railroad] Vice President testified that because of the unique liability scheme of the FELA, and because 95% of all incident reports to NPBL result in claims, it was company policy for supervisors of injured workers to prepare such memoranda when any incident occurs. The knowledge that 95% of all incident reports result in claims, combined with the unique negligence standard and law that applies to FELA claims, also tends to create a basis for NPBL to reasonably foresee litigation. NPBL's argument, that it reasonably foresaw litigation from the moment it learned of the incident, is reinforced by Donnelly's testimony that when he learned of plaintiff's incident he assumed, based in part on the fact that plaintiff was a union official, that plaintiff would file a claim"; "NPBL's vice President, Donnelly, testified that on the morning plaintiff's injury came to his attention as a result of the 'morning report' which was within a day or so of the incident itself -- he followed his normal practice involving employee injuries and telephoned NPBL's General Counsel. The fact that NPBL normally telephoned its General Counsel when it learned of any injury incident supports its contention that other activities such as preparing the memorandum are done with an eye toward litigation. Furthermore, with reference to this specific case, the fact that NPBL telephoned its attorney when this incident came to its attention within a day or so of the incident also suggests that the various entries on the memorandum were placed there based upon NPBL reasonably foreseeing litigation.". . . The fact that basic incident information was recorded on documents that were prepared ostensibly in the ordinary course of business tends to suggest that other documents with duplicative information might have another purpose such as litigation preparation."; "For the same reasons that this Court declines to adopt a bright-line rule granting work product protection to all documents prepared after the moment of a railroad incident, the Court also declines to adopt a bright-line rule refusing work product protection to all documents prepared before receipt of a formal claim and granting protection to documents prepared after receipt of a formal claim. Larson, 42 Va. Cir. at 45 (rejecting application of such bright-line tests). Such arbitrary bright-line rules fail to consider the myriad of factors that must be considered in a case-by-case analysis. While it is true that the absence of a formal claim in this matter is a factor to be considered, the other factors reviewed above outweigh the absence of a formal claim at the time the entries were made on the memorandum. For these reasons, the Court finds that a reasonable person in the shoes of NPBL, at the time the memorandum was produced, would have anticipated or reasonably foreseen litigation. Therefore, the court concludes that based upon the evidence presented in this matter, the memorandum was produced because of expected litigation and is entitled to the qualified work product privilege of Va. Sup. Ct. R. 4:1(b)(3). . . . Having determined that the qualified privilege applies, and because the memorandum would clearly be relevant if not privileged, . . . the Court must now determine whether plaintiff has shown he has 'substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.' Plaintiff came to the Court with a heavy burden in this regard because at the time of the hearings on this motion he had not yet taken the deposition of Leon Rodgers, who made the entries on the memorandum, or of any others with knowledge of this incident.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.505
Case Name: Massenburg v. Hawkins, 70 Va. Cir. 13, 15 (Va. Cir. Ct. 2005)
(in a third-party insurance context, finding that the work product doctrine did not protect a statement defendant gave to her insurance company after an auto accident; also finding that plaintiff had substantial need for the statement because defendant's memory was not clear; "Massenburg cites McDougall v. Dunn, 468 F.2d 468 (1972), for its contention that 'any report or statement made by or to a party's agent . . . which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney's legal expertise must be conclusively presumed to have been made in the ordinary course of business' and thus outside the work product doctrine. Id. at 473 (quoting Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (D.C. III. 1972)). The Circuit Court for Fairfax County has stated that 'the majority of Virginia Circuits endorse the Thomas Organ rule.' Lopez v. Woolever, 62 Va. Cir. 198, 201 (1993) (citations omitted).")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.505
Case Name: Lopez v. Woolever, 62 Va. Cir. 198, 206 (Va. Cir. Ct. 2003)
(concluding that during the defendant's insurance carrier's investigation deserved work product protection, which could not be overcome; "'Examples of undue hardship include instances when witnesses cannot recall statements contained in interviews.' In re Int'l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1240 (5th Cir. 1982). 'Unusual expense involved in obtaining equivalent information is another factor that may establish undue hardship.' Fletcher, 194 F.R.D. at 671 (quoting Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1467 (11th Cir. 1984)).")

Case Date Jurisdiction State Cite Checked
2003-01-01 State VA

Chapter: 45.505
Case Name: McMillan v. Renal Treatment Ctr., 45 Va. Cir. 395, 397-98 (Va. Cir. Ct. 1998)
(addressing work product protection for a post-incident report at a medical facility; ultimately finding that the report did not deserve work product protection, and that plaintiff could overcome the protection even if it applied; "The parties stipulated, when before the Court at the April 13 hearing, that Mrs. Johnson [defendant’s employee involved in the incident] has since left the employ of the Renal Treatment Center and cannot be located by either counsel, and Mrs. McMillan has since died. This court therefore finds that the plaintiff, the personal representative of the deceased, Mrs. McMillan, has 'substantial need' of the report and is unable to obtain the 'substantial equivalent' of the report. Given the fact that neither of the two eye witnesses to the dispute, the patient Mrs. McMillan, or the treating nurse, Mrs. Johnson, is available to be deposed or participate in answering any discovery, the court finds that the information is not otherwise available to the plaintiff, and therefore, the plaintiff is entitled to the incident report under Rule 4:1(b)(3).") [Taylor, J.]

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA B 12/09

Chapter: 45.505
Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 466 (E.D. Va. 1998)
("Judge Miller found that FEC could not obtain the same information elsewhere due primarily to the limit on depositions in the D.C. litigation combined with the potential that the deponents might not be able to recall sufficient detail regarding meetings that took place at least five years ago.")

Case Date Jurisdiction State Cite Checked
1998-01-01 Federal VA

Chapter: 45.505
Case Name: Larson v. McGuire, 42 Va. Cir. 40, 42, 45 (Va. Cir. Ct. 1997)
(holding that the plaintiff had established her inability "without undue hardship, to obtain a substantial equivalent" of the defendant's post-accident statement to her insurer; noting that the plaintiff had established the need to obtain statements of witnesses taken immediately after the accident; "These statements would have been taken shortly after the accident and would serve as a basis for understanding defendant's claim of contributory negligence, as that claim is now clouded by deposition testimony. In addition, it is important that the parties be able to fully explore inconsistencies and ambiguities in testimony of the opposing party during the discovery process. Not only may such statements be used to prove an element of a party's claim but may also serve as a means of impeachment."; rejecting a "bright line test" for the discoverability of insurance statements; finding the work product protection applied but was overcome by the plaintiff's substantial need for the statements)

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA

Chapter: 45.505
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA

Chapter: 45.505
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 477, 478, 479, 480 (Va. Cir. Ct. 1979)
(analyzing work product protection for witness statements taken by a railroad after an industrial accident; ultimately finding that the statements deserved work product protection, but that the plaintiff could overcome the protection; "The purpose of the investigation was twofold: (1) in order to furnish a report of the accident to the Department of Transportation, and (2) in order to prepare for anticipated litigation."; "The court is of opinion that these statements are a part of the attorney's work product even though they were not taken solely in anticipation of litigation."; "In the present case, the statements in question were taken immediately after the accident. Indeed, Mr. Gibson's statement (being that of a participant in the accident) was taken on the same date as the accident. Four of the persons whose statements were taken are defendant's employees. The defendant has a rule which prohibits their employees from talking to the plaintiffs and their attorney. These four employees refuse to cooperate. Only Mr. Sandridge made any statement and his was couched in language which tends to create suspicions."; "It is true, as argued by the defendant, that plaintiffs are at liberty to take discovery depositions of these persons, but this means is expensive and time consuming, and if, as indicated by Mr. Sandridge, a person knows nothing about the case, it would be an exercise in futility.")

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA B 12/09

Chapter: 45.505
Case Name: Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477, 480 (Va. Cir. Ct. 1979)
(holding that work product protection may be overcome upon a finding of substantial need; the plaintiff's taking of depositions would be "expensive and time consuming")

Case Date Jurisdiction State Cite Checked
1979-01-01 State VA

Chapter: 45.506
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; finding the "at issue" doctrine inapplicable; finding that the defendants could not overcome the work product protection for E&Y's background documents; "As to hardship, their argument cites an inflated cost for the Trustee's production of the Report . . . And provides no estimate of the cost they would incur examining the same documents to rebut the conclusions in the Report.")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY

Chapter: 45.506
Case Name: DeAngelis v. Corzine; In re MF Global Holdings Ltd. Investment Litig., 11 Civ. 7866 (VM) (JCF), 12 MD 2338, 2015 U.S. Dist. LEXIS 18207 (S.D.N.Y. Feb. 9, 2015)
(in an opinion by Judge Francis, analyzing defendants' efforts to obtain background documents prepared by bankruptcy trustee's consultant E&Y's investigation into the trustee's causes of action against the defendants; finding the "at issue" doctrine inapplicable; finding that the defendants could not overcome the work product protection for E&Y's background documents; "'It is particularly tempting in this case, where extraordinary litigation costs have eroded the resources available to pay a judgment or fund a settlement, to require the disclosure of work product in order to avoid duplicative work by counsel. However, such a rationale would apply to some extent to every case and would undermine the work-product doctrine.'")

Case Date Jurisdiction State Cite Checked
2015-02-09 Federal NY
Comment:

key case


Chapter: 45.506
Case Name: Moore v. Dan Holdings, Inc., No. 1:12CV503, 2013 U.S. Dist. LEXIS 61378, at *23 (M.D.N.C. Apr. 30, 2013)
("'Plaintiff has demonstrated a "substantial need" for the requested information based upon its relevance and importance to her claims and the fact that Plaintiff has unsuccessfully (due to Defendants' objections to written discovery and/or at other depositions) tried to obtain the information through other means.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-04-30 Federal NC B 7/13

Chapter: 45.506
Case Name: SEC v. Cuban, Civ. A. No. 3:08-CV-2050-D, 2013 U.S. Dist. LEXIS 37167, at *18-19 (N.D. Tex. Mar. 15, 2013)
(concluding that Mark Cuban could not overcome the SEC's work product protection for interview notes prepared one year before testimony that was available to Cuban; "Cuban has also shown that he cannot, without undue hardship, obtain information substantially equivalent to that found in interviews conducted by the SEC in the course of investigating Mamma.com. Unlike for the interviews conducted during the investigation of Cuban, for which he has access to a parallel set of notes (e.g., those taken by Mamma.com's counsel), there is no indication that there are available notes, other than the SEC's, pertaining to the investigation of Mamma.com. Furthermore, because interviews for the Mamma.com investigation occurred in 2004, there is a three-year gap between these interviews and statements and testimony Cuban can access. Compared to the one-year interval between interviews and investigative testimony in the SEC's investigation of Cuban, this three-year gap presents a greater risk that witnesses could have forgotten important details they recalled in 2004. This makes it more likely that the information in testimony available to Cuban is not substantially equivalent to what would be found in the SEC's notes.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal TX B 3/14

Chapter: 45.506
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *102-03 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "[I]t is clear that Chevron will be unable to obtain these documents from the people who were on the ground in Ecuador -- e.g., Fajardo, Prieto, Saenz, and others --and were directly involved in orchestrating these events. Defendants have refused to produce documents or other information from their Ecuadorian agents.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.506
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *103 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "As Chevron is unable to obtain them from the LAPs' [Ecuadorian plaintiffs] Ecuadorian counsel, it needs them from PB.")

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 45.506
Case Name: Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012)
February 27, 2013 (PRIVILEGE POINT)

"Can Translations of Foreign Documents into English Ever Deserve Work Product Protection?"

Although the attorney-client privilege generally protects only confidential communications between clients and their lawyers, the work product doctrine can provide a far broader range of protection. Among other things, work product protection does not depend on a lawyer's participation, or on confidentiality.

In Shionogi & Co. v. Intermune Inc., No. C-12-03495 EDL, 2012 U.S. Dist. LEXIS 173452, at *1 (N.D. Cal. Dec. 5, 2012), the court found that a party's translation of Japanese documents into English deserved work product protection, because plaintiff translated the documents "in furtherance of preparing Plaintiff's case." The court further held that the identity of those documents plaintiff thought important enough to translate also deserved work product protection. The court rejected defendant's effort to overcome plaintiff's work product protection – noting that defendant "focuses on the cost of translations, but such costs do not ordinarily constitute an undue hardship" that would justify overcoming the plaintiff's work product protection. Id. At *5. The court concluded that "Defendant has not shown a substantial need to piggyback on Plaintiff's translations because it can obtain its own." Id.

The work product doctrine rests on a fairly modest purpose – each litigant should prepare itself for litigation or trial, rather than "piggyback" on the other side's work.

Case Date Jurisdiction State Cite Checked
2012-12-05 Federal CA
Comment:

key case


Chapter: 45.506
Case Name: United States v. ISS Marine Servs., 905 F. Supp. 2d 121, 138-39 (D.D.C. 2012)
(analyzing privilege and work product protection for an audit; noting that the company had specifically indicated that it did not need the assistance of Arnold & Porter in connection with the audit; "The subpoena in the instant case sought documents from ISS Marine as well as its foreign affiliates (including Inchcape). . . . The respondent's position, however, is that all of the source documents underlying the Audit Report are 'in the exclusive custody and control of Inchcape's non-United States entities,' and are thus beyond the scope of the subpoena power. . . . This unequivocally constitutes 'undue hardship' because it is unclear that the Government would have any means to 'procure equivalent information,' let alone be able to do so 'without undue hardship.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 7/13

Chapter: 45.506
Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 177 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "Having determined that the qualified privilege applies, and because the memorandum would clearly be relevant if not privileged, . . . the Court must now determine whether plaintiff has shown he has 'substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.' Plaintiff came to the Court with a heavy burden in this regard because at the time of the hearings on this motion he had not yet taken the deposition of Leon Rodgers, who made the entries on the memorandum, or of any others with knowledge of this incident.")

Case Date Jurisdiction State Cite Checked
2005-01-01 State VA

Chapter: 45.506
Case Name: Taylor v. McCallister, 40 Va. Cir. 327, 327, 327-28 (Va. Cir. Ct. 1996)
(addressing work product protection for a hearing transcript plaintiff arranged to have created at a court hearing; ultimately concluding that the work product doctrine protected the transcript, but that the defendant could overcome the protection; "On August 5, 1996, plaintiff's counsel arranged to tape record and transcribe a hearing in General District Court relating to traffic offenses arising out of the accident which is the subject of this litigation. Defendant's representative was also present at the hearing but did not record the proceeding. Defendant seeks a copy of plaintiff's transcript."; "Even though the defendant had the same opportunity to tape and transcribe the proceeding, he did not do so. Especially since plaintiff has the transcript in question, the defendant also has a substantial need for the material in preparation of the case. In addition, there exists no other method to obtain the material by other means. Upon tender of reasonable costs of duplication, the defendant is entitled to a copy of the transcript.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 45.506
Case Name: Ring v. Mikrin, Inc., 40 Va. Cir. 528, 535, 535-36 (Va. Cir. Ct. 1996)
(analyzing work product protection in a third party insurance context; explaining that plaintiff who claimed to have injured in a fall at the defendant restaurant sought production of various materials prepared after the accident; ultimately concluding that the work product protection covered the material, and that the plaintiff could overcome the protection only for post-accident photographs; rejecting a "bright line" test in favor of a fact-intensive analysis; ultimately finding that the materials deserve work product protection; also concluding that the plaintiff could overcome the work product protection for some but not all of the materials; "The court finds plaintiff has not made a strong showing of substantial need as to the witness interviews and diagrams of the restaurant. The plaintiff has access to the witnesses the insurance company interviewed and may question those witnesses under oath with penalty of perjury."; "As to the photographs, plaintiff has demonstrated substantial need considering the factors articulated in Suggs [Suggs v. Whitaker, 152 F.R.D. 501 (M.D.N.C. 1993)]. The photographs were taken soon after the accident occurred and would therefore seem relevant and important to the case. Second, the plaintiff would face great difficulty, if not impossibility, in obtaining photographs from any other source. Because the plaintiff cannot recreate the accident scene and the photographs were taken close in time to the accident, the court finds the plaintiff has demonstrated a substantial need for the photographs.")

Case Date Jurisdiction State Cite Checked
1996-01-01 State VA B 12/09