Under Fed. R. Civ. P. 26(b)(3)(A)(ii), an adversary can overcome a litigant’s work product protection (at least for fact work product) if the adversary “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” The “substantial need” standard focuses on the material’s importance in the case. The “substantial equivalent” standard compares the material to other alternatives (testimony versus documents, contemporaneous memorialization versus later recollection, etc.). The “undue hardship” standard focuses on the time, money, and effort it would take for the adversary to obtain the “substantial equivalent” of the important material. For instance, it would not be an “undue hardship” for the adversary to review one court file or depose a handful of witnesses to obtain the “substantial equivalent” of a litigant’s work product ‑‑ but the adversary might successfully claim “undue hardship” if it would have to visit a hundred courthouses or interview 500 witnesses.
Unfortunately, some courts misapply the “undue hardship” standard. In Costabile v. County of Westchester, No. 06 Civ. 3329 (WCC), 2008 U.S. Dist. LEXIS 47692 (S.D.N.Y. June 18, 2008), the court upheld the plaintiff’s work product claim for its private investigator’s report. The court also found that defendants could not overcome the plaintiff’s work product claim, noting that “[d]efendants do not argue that they have a substantial need for the report or that they face undue hardship because they cannot obtain the substantial equivalent of the report by other means.” Id. at *19-20 (emphasis added). The Rule actually looks at whether the adversary would face an “undue hardship” in obtaining the work product’s equivalent, not whether the adversary would suffer “undue hardship” because they cannot obtain the work product’s substantial equivalent.
Lawyers should familiarize themselves both with the work product rule’s applicability and the standards for overcoming the protection.