Court Deals with a Classic Work Product Situation

March 24, 2010

Unlike the attorney-client privilege, work product protection for fact work product does not provide an absolute protection – the adversary can obtain a litigant’s fact work product if he establishes “substantial need” for the work product, and the inability to obtain the “substantial equivalent” without “undue hardship.”

In Hunkin v. Cooper/T. Smith Stevedoring Co., Civ. A. No. 08-456, 2010 U.S. Dist. LEXIS 3529 (W.D. La. Jan. 7, 2010), a defense lawyer interviewed a crane operator (and prepared a witness statement) immediately after a serious accident. About eleven months later, the plaintiff deposed that witness, but he could remember very little of the accident. When the plaintiff sought to overcome defendant’s work product claim for the post-accident statement, the defendant argued that the witness statement deserved absolute protection as “opinion” work product – because the defense lawyer’s questions and decision about what to include in the statement reflected the lawyer’s opinion. The court found it “difficult to envision” how a lawyer could have formed any opinions, conclusions, etc. “so soon after the accident occurred” – but “out of an abundance of caution” agreed to review the statement in camera, and directed the defendant to “identify with particularity” any portions of the statement reflecting the lawyer’s opinion. Id. at *21-23.

Companies and their lawyers facing a situation like this should prepare for witnesses to suffer from faded memories, and be sure to build support for any opinion work product protection as the company or its lawyer prepares the statements.