Unlike the attorney-client privilege, the work product doctrine normally provides only a qualified protection. The adversary can obtain a litigant’s fact work product by establishing “substantial need” for the work product, and the inability to obtain the “substantial equivalent” without “undue hardship.”
In Trejo v. Alter Scrap Metal, Inc., Civ. A. No. 2:08cv257-KS-MTP, 2009 U.S. Dist. LEXIS 80375 (S.D. Miss. Aug. 24, 2009), defendants took photographs of an accident scene within hours of the accident. Defendants claimed work product protection for the photographs, and resisted the plaintiff’s effort to obtain them — arguing that they had produced other photographs of the accident scene, testimony about the scene, and a handwritten sketch of the scene. The court rejected defendants’ argument, and ordered the defendants to produce the photographs, noting that (1) the plaintiff “has little to no memory of the event” because of a head injury; (2) the “withheld photographs were taken within hours of the accident” while those produced by the defendants “were taken over a week after the accident”; and (3) “verbal testimony and a written sketch do not constitute the substantial equivalent of the photographs.” Id. at *3-4.
The qualified nature of the work product doctrine represents one of the key differences between that protection and the attorney-client privilege.