When Can An Adversary Overcome A Litigant’s Work Product Protection?

October 23, 2019

Unlike the absolute attorney-client privilege, adversaries can obtain a litigant’s work product if they have “substantial need” for the work product, and cannot obtain its “substantial equivalent” without “undue hardship.” All courts offer a higher protection for opinion work product, and many courts absolutely protect opinion work product.

In Chadwell v. Lone Star Railroad Contractors, Inc., No. 3:17CV00053 JLH, 2019 U.S. Dist. LEXIS 133423 (E.D. Ark. Aug. 8, 2019), a deceased railroad worker’s personal representative sought defendant railroad’s incident scene photographs, witness statements and incident reports. The court denied all three efforts, holding: (1) the representative “already has contemporaneous photographs” taken by the nearby plant, the coroner’s office and an OSHA investigator (id. at *6); (2) she “has had the opportunity to depose any potential witness . . . including one of the witnesses whose statement is being withheld” (id. at *8); (3) she “cannot show that she has a substantial need for the incident report . . . [because she] has had the opportunity through discovery to find out details about the accident,” including interviewing and deposing “any person with knowledge of the incident.” Id. at *10.

Given the fact-intensive analysis courts must undertake when an adversary seeks a litigant’s work product, corporations should never count on winning that dispute.