Courts Explore the “Undue Hardship” Standard

March 4, 2009

A litigant’s adversary can overcome the litigant’s ordinary work product protection by establishing a “substantial need” for the protected material, and the inability to obtain the “substantial equivalent” without “undue hardship.” The first factor focuses on the material’s importance to the case, and the second factor looks at the possibly unique nature of the withheld material.

The “undue hardship” factors analyze the difficulty facing the adversary in obtaining essentially the same information. In Murphy v. Kmart Corp., No. CIV. 07-5080-KES, 2009 U.S. Dist. LEXIS 1705, at *33 (D.S.D. Jan. 9, 2009), the court found that Kmart could obtain witness affidavits collected by an employment discrimination plaintiff, because “[w]ithout this information Kmart would have to depose or take witness statements from . . . approximately 85 individuals.” Four days later, in SEC v. Collins & Aikman Corp., No. 07 Civ. 2419 (SAS), 2009 U.S. Dist. LEXIS 3367, at *19 (S.D.N.Y. Jan. 13, 2009), Judge Shira Scheindlin held that defendant David Stockman could obtain the SEC’s compilation of important documents the SEC had selected out of the documents produced to it, because “[a] page-by-page manual review of ten million pages of records is strikingly expensive in both monetary and human terms and constitutes ‘undue hardship’ by any definition.” One week after that, the court in EEOC v. CRST Van Expedited, Inc., No. C07-0095, 2009 U.S. Dist. LEXIS 3621, at *14 (N.D. Iowa Jan. 20, 2009), held that defendant CRST could obtain communications between the EEOC and potential class members, because “[t]o require CRST to redepose each of the 150+ class members on this subject would create an undue hardship for all parties.”

Lawyers hoping to overcome their adversaries’ work product protection must be prepared to satisfy the “undue hardship” standard by pointing to facts like these.