Establishing “Substantial Need” Sufficient to Overcome the Work Product Doctrine Protection

April 10, 2001

Unlike the attorney-client privilege (which is an absolute protection), the work product doctrine provides only a conditional immunity from disclosure. The protection for factual work product (which does not contain opinions of a lawyer or other client agent) can be overcome if the party seeking the material establishes “substantial need” for the information and the inability to obtain it without “undue hardship.” A recent case represents the classic situation in which a party can meet these tests. In Haney v. Yates, No. 1999-SC-1113-MR, 2000 Ky. LEXIS 156, at *10 (Ky. Nov. 22, 2000) (case not final), a taxi driver who hit and killed a pedestrian gave a statement to the taxi company’s safety department after the accident. The decedent’s administrator sought a copy of the statement. The court found that the statement deserved work product protection, but that the administrator had “shown both substantial need and undue hardship” because the information was important to the case and because “the only other witness, [the pedestrian], is deceased.”

Lawyers involved in preparing factual work product for their clients should always remember that later circumstances might render the materials discoverable. Infusing the materials with opinion work product (which receives a greater protection than factual work product) might increase the chance that a court will continue to protect the materials from disclosure.