Unlike the attorney-client privilege, the work product doctrine provides only a conditional protection, which a litigant can overcome if it establishes “substantial need” for an adversary’s work product and its inability to obtain the “substantial equivalent” without “undue hardship.”
In re Complaint of Omega Protein Inc., No. 2:04-cv-2071, Section P, 2007 U.S. Dist. LEXIS 3632 (W.D. La., Jan. 17, 2007), assessed a classic scenario. A ship owner’s lawyer had taken statements from the captain and crew members shortly after an October 4, 2004 collision. In later litigation, adversaries sought the witness statements in discovery. The ship owner correctly claimed that the witness statements deserved work product protection. The adversary sought to overcome the protection, and the court agreed. The court pointed to (1) the ship captain’s deposition testimony conceding that his “‘memory would have been better two years ago than it is today,'” id. at *9 n.3, and (2) an affidavit filed by the adversaries’ lawyer describing his unsuccessful efforts to find other crew members who had given the statements shortly after the collision. The lawyer had hired three separate investigators, and spent nearly $5,000 in his efforts to locate the other crew members. The court concluded that “[t]he unavailability of these key witnesses prevents [the ship owner’s adversary] from being able to obtain the substantial equivalent of the witness statements through other means such as a deposition.” Id. at *11. The court ordered the ship owner to produce all of the witness statements.
Many courts find that a litigant can overcome an adversary’s work product protection if witnesses cannot remember important events, or have disappeared.