Meaning of the “Substantial Need” Test Involving Work Product

May 9, 2001

The work product doctrine provides only a qualified immunity from discovery, and can be overcome if the party seeking the work product can prove a “substantial need” for the information and the inability to obtain it elsewhere without “undue hardship.” Most court analyses focus on the “undue hardship” component, which often involves the unavailability of witnesses, change in conditions from the time of an accident, etc.

One recent decision provided a detailed analysis of the “substantial need” component, finding that the information sought must satisfy a standard higher than that justifying discovery of the information. Instead, the information “must be an ‘essential element of the requesting party’s prima facie case.'” In other words, “the information in issue must do more than meet the broad standard of relevance applicable in discovery.” A.I.A. Holdings, S.A. v. Lehman Bros., Inc., No. 97 Civ. 4978 (LMM)(HBP), 2000 U.S. Dist. LEXIS 15820, at * 7 (S.D.N.Y. Oct. 27, 2000).

Lawyers opposing an adversary’s attempts to overcome the work product protection might be able to resist the efforts by arguing that the adversary has not proven “substantial need” for the information.