Adversaries can seek a litigant’s fact work product by arguing that they have “substantial need” for the work product and cannot obtain the “substantial equivalent” without “undue hardship.” In stark contrast, the attorney-client privilege provides absolute protection.
In Fuller v. Interview, Inc., No. 07 Civ. 5728 (RJS)(DF), 2009 U.S. Dist. LEXIS 93157, at *20 (S.D.N.Y. Sept. 30, 2009) (citation omitted), Magistrate Judge Debra Freeman dealt with plaintiff’s argument that she would suffer “‘enormous prejudice'” and be “‘irreparably harmed'” without access to defendant’s privileged e-mails. Judge Freeman flatly rejected plaintiff’s argument, noting that a privileged document “is simply not subject to discovery . . . regardless of its perceived relevance or importance to a party’s claim.” Id. at *21.
Lawyers normally should look for any available work product protection, because nonlawyers can create work product and because disclosure to friendly third parties does not waive that protection. However, lawyers should also be looking for available privilege protection — which might be more difficult to create and more fragile than the work product protection, but which provides absolute protection.