Because the work product doctrine is not a privilege, litigants can overcome the protection afforded to factual work product if they establish “substantial need” for their adversary’s work product, and the inability to obtain its substantial equivalent without “undue hardship.”
Some litigants seek their adversary’s work product (such as witness interview memoranda) by arguing that they have a “substantial need” to find “inconsistencies” between a witness’s statements during the interview and the witness’s later testimony. A Florida court recently found that such an argument did not meet the “substantial need” standard. Florida Farm Bureau Gen. Ins. Co. v. Copertino, 810 So. 2d 1076(Fla. Dist. Ct. App. 2002).
Lawyers beginning to prepare work product or seeking to overcome their adversary’s work product claim should be familiar with the “substantial need” standard, because the fate of a work product claim might depend upon how the applicable court approaches that standard.