Among the other important distinctions between it and the attorney-client privilege, the work product doctrine is not really a privilege. It can be overcome if the party seeking the work product proves “substantial need” for its adversary’s work product, and the inability to obtain the “substantial equivalent” without “undue hardship.”
In Continental Casualty Co. v. Marsh, No. 01 C 0160, 2004 WL 42364, at *9 (N.D. Ill. Jan. 5, 2004), the court rejected a party’s argument that it had proven “substantial need” for its adversary’s privileged documents. The court noted that the party “makes this argument without differentiating between attorney-client communications and work product. But that distinction is crucial. The ‘substantial need’ exception applies only to work product.” Id.
Lawyers must always remember the many important distinctions between the attorney-client privilege and the work product doctrine, including such elemental factors as whether the protection can be overcome.