Post-Accident Statement Found Unprotected by the Work Product Doctrine

July 25, 2001

The work product doctrine is not an absolute privilege, but provides only a qualified immunity to materials prepared by a party in anticipation of litigation or for trial. The adversary may still be entitled to obtain the materials if the adversary has “substantial need” of the materials and “is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

One type of work product likely to fall into this category is a contemporaneous statement about an accident. In Coogan v. Cornet Trans. Co., Inc., 199 F.R.D. 166, 167 (D. Md. 2001), the court held that the plaintiffs in a personal injury case involving an accident between their car and a truck were entitled to obtain a copy of the truck driver’s immediate post-accident statement. As the court explained, the statement, “made on the day of the accident, captured [the truck driver’s] immediate perceptions of the accident, uninfluenced by the passage of time or his present status as a defendant.”

Lawyers should always remember that even classic work product may lose its protection if it provides a unique and impossible-to-reproduce observation of a past event. Most courts would apply greater protection to opinion work product, which reflects a lawyer’s or other client agent’s mental impressions.