The attorney-client privilege provides absolute protection, if properly created and not waived. In contrast, an adversary can overcome a litigant’s fact work product protection by establishing “substantial need” for the withheld documents, and the inability to obtain their “substantial equivalent” without “undue hardship.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
In Bryant v. Trexler Trucking, Civ. A. No. 4:11-cv-2254-RBH, 2012 U.S. Dist. LEXIS 6055 (D.S.C. Jan. 18, 2012), the court dealt with a personal injury plaintiff’s attempt to overcome defendant trucking company’s work product claim for three witness statements the trucking company obtained after an accident. Plaintiff argued that he had “substantial need” for the witness statements, because the trucking company had obtained them shortly after the collision. Id. at *6. The court acknowledged that contemporaneous witness statements can be “so unique that substantial need is present,” even if the adversary could later interview the same witnesses. Id. at *8. The court ultimately concluded that the plaintiff could overcome the trucking company’s work product claim for a statement its investigator obtained four days after the accident, but not for two witness statements obtained several months after the accident. The first statement “constitute[d] a contemporaneous statement that would provide an immediate impression of the facts,” while the other two statements “lack[ed] the unique value held by statements given close in time to an event.” Id. at *12-13.
Although the court did not address the issue, the trucking company presumably would be able to redact from the first witness’s statements any opinion work product, such as an analysis of the witness’s credibility, etc.