Most litigators prepare draft and then final affidavits for use in pre-trial proceedings and, sometimes, even at trial. This process raises questions about fact and opinion work product protection and an adversary’s possible grounds for overcoming those protections.
In Clark v. Hickory Treatment Center, No. 1:25-cv-00029-HAB-ALT, 2026 U.S. Dist. LEXIS 105743 (N.D. Ind. May 13, 2026), defendant company sought discovery of a draft affidavit that a racial discrimination plaintiff prepared for a presumably sympathetic former employee. The court held that (1) “lower courts have found that third-party/non-party witness affidavits are protected work product as they disclose mental impressions of attorneys and case strategy”; (2) defendant could not overcome plaintiff’s work product protection for the draft affidavit because “taking a deposition is an available option”; and (3) the former employee was not “unavailable,” despite defendant’s argument that “she has been evading service.” Id. at *9-10.
Most courts would not have assessed the second issue – because normally opinion work product is absolutely or nearly absolutely protected.