Showing 307 of 307 results

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-03-15 Federal TX B 3/14

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1987-01-01 State VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-02-04 Federal OR
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 Jurisidction 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 Jurisidction State Cite Checked
1996-01-01 State VA B 12/09

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1987-01-01 State VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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