A litigant can generally obtain an adversary’s factual work product by establishing “substantial need” for the work product and the inability to obtain the information elsewhere without “undue hardship.” Courts disagree about what litigants must prove to establish such “substantial need.”
Three recent decisions provide examples of situations involving “substantial need.” In Carroll v. Bayerische Landesbank, No. 99 Civ. 2892 (CBM)(MHD), 2000 U.S. Dist. LEXIS 16515, at *4 (S.D.N.Y. Nov. 13, 2000), the court ordered a plaintiff to produce tape recordings of eyewitnesses, because the tapes “may contain statements by witnesses that are inconsistent with their deposition testimony” or statements by the plaintiff “that are inconsistent with her current position in this case.” In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 303, 307 n.3 (E.D. Mich. 2000), the court ordered the defendant to produce an affidavit signed by a former employee, because the former employee could not recall the key facts when he was deposed. Other courts are not this liberal, and require a higher showing of “substantial need.” For instance, one court recently indicated that “a party’s desire to find corroborating evidence is insufficient to establish substantial need.” Fletcher v. Union Pacific R.R. Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000)(citation omitted).
Lawyers should remember that the work product doctrine can be overcome in a number of circumstances, and that later events (such as changes in a party’s or witness’s positions, or a witness’s memory lapses) can justify overcoming the protection.