Overcoming Work-Product Protection

Overcoming Work-Product Protection

Rule 26(b)(3)(A) states the work-product bar and the terms on which it yields in a single provision. A party ordinarily may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative, a group that includes the other party’s attorney, consultant, surety, indemnitor, insurer, and agent.¹ Subject to Rule 26(b)(4), though, those materials may be discovered if two conditions are met. They must be otherwise discoverable under Rule 26(b)(1),² and the requesting party must show that it has substantial need for them to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.³ The protection is qualified for that reason, and a requester who misses either condition leaves the bar in place.

The two conditions do different work. The first keeps work product inside the ordinary boundaries of discovery, so a showing of need cannot reach matter that Rule 26(b)(1) would exclude for some other reason. The second does the heavier lifting, and it has two halves. Substantial need makes the requester explain why these materials matter to its case; a general wish to see the opponent’s file does not qualify. The hardship half sends the requester elsewhere first. If a witness it can interview, or a source it can reach with reasonable effort, holds the same information, the opponent’s investigation adds nothing the requester cannot supply for itself, and an order of production would let one side rob the other of the fruits of its labor, which the doctrine exists to prevent.⁴

The requester carries the burden on the second condition, because the rule requires the party to show these things.⁵ That burden arises only after the claimant has established that the material is a document or tangible thing prepared in anticipation of litigation by or for a party or its representative, since until then there is no protection to overcome. The three subsections below follow the requester’s showing in the order the rule states it.

A requester who satisfies both conditions still may not receive everything it asked for. If the court orders discovery, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of the party’s attorney or other representative concerning the litigation.⁶ Rule 26(b)(4), which the chapter takes up with testifying experts, also qualifies the whole inquiry.

Otherwise Discoverable Material

The first condition, in Rule 26(b)(3)(A)(i), requires that the materials be “otherwise discoverable under Rule 26(b)(1).”⁷ The word otherwise tells the court to set the work-product claim aside and ask whether the requester could obtain the material under the ordinary rules if no one had prepared it for litigation. If the answer is no, the request fails at the threshold, and need and hardship never arise. The condition therefore acts as a gate: it restores ordinary access for materials that earn it and gives the requester no route to anything Rule 26(b)(1) would already exclude.

Relevance does not carry a requester past the next step, though arguing relevance is the most common mistake in a work-product motion. The rule presupposes that all discoverable material is relevant to a claim or defense, so proving relevance proves only what the first condition already assumed.⁸ If relevance also established substantial need, every discoverable item in an opponent’s file would be reachable on request, and the qualified protection would protect nothing. The showing that carries weight comes under subparagraph (ii), taken up in the next two subsections.

Hickman v. Taylor shows a request that clears the first condition and still fails. The lawyer, Fortenbaugh, privately interviewed the survivors of the accident and took statements from them with an eye toward the anticipated litigation; he also interviewed other persons believed to have information and sometimes made memoranda of what they told him.⁹ The Court refused production, but not because the subject matter was privileged or irrelevant. It saw “simply an attempt, without purported necessity or justification,” to secure written statements, private memoranda, and personal recollections prepared by an adverse party’s counsel.¹⁰ The plaintiff wanted to make sure nothing had been overlooked, which is the showing he made unsuccessfully.¹¹ Hickman thus marks the usual path: the requester passes the first condition easily and then must prove need and hardship.

A privileged communication stops at the gate for a different reason. Creating a privilege reflects a judgment by a legislature or court that protecting the communication matters more than giving litigants access to it, so a privilege claim ordinarily prevails even when the withheld information is crucial, absent some constitutional issue.¹² Work product differs because Rule 26(b)(3)(A) builds in an exception for need, and a privilege has no such exception.

The need showing in subparagraph (ii) therefore answers only the work-product shield. When one document is covered by both shields, the requester may overcome work product and still face the privilege, which must be met on its own terms. An exam stem that stresses how badly the requester needs the material is accordingly testing which shield is in play. Against work product, the importance of the material feeds the substantial-need showing; against a privilege, it ordinarily does not override the claim.

Substantial Need

Rule 26(b)(3)(A)(ii) requires two showings, and they answer different questions. Need looks at the materials and asks why these particular documents matter to the requester’s preparation. Hardship looks outward and asks whether some other route would deliver the same information at a tolerable cost, a question the next subsection takes up.¹⁵ A requester who cannot say what it needs from a document gives the court nothing to weigh against the intrusion into the opponent’s preparation, so vague requests fail on need first.

The requester normally makes its showing by affidavit in support of a motion to compel.¹⁶ Hickman supplies the model of an inadequate one. The Court stressed that the plaintiff had not made a sufficient showing to overcome the protection for Fortenbaugh’s files, and Rule 26(b)(3) drew on that discussion in setting out what a requester must show.¹⁷ The later cases fill in the showings that fall short.

Relevance proves nothing, because the rule presupposes that all discoverable material is relevant, and a desire to make sure nothing was overlooked is the showing the Hickman plaintiff made unsuccessfully.¹⁸ A mere surmise that the material may be useful is no better.¹⁹ Nor can a motion succeed on an affidavit that merely alleges a need for the materials “to help prepare . . . to examine witnesses”; the commentary calls such a motion doomed and cites cases such as Delco Wire & Cable, Inc. v. Weinberger as examples.²⁰

Each of these failures has the same cause. Every litigant wants to be sure nothing was overlooked, and every litigant suspects that an opponent’s file holds something helpful. If those motives sufficed, the protection would give way on request, and Hickman warned of the consequence: were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten.²¹ A bare attempt to obtain an adverse party’s counsel’s statements, memoranda, and recollections, “without purported necessity or justification,” falls outside the arena of discovery, a holding on which Riggs National Bank of Washington, D.C. v. Zimmer relies.²²

Need for the materials is also distinct from interest in the facts they contain. In litigation against Wells Fargo, the court granted Wells Fargo a protective order because the relators had not yet met their heavy burden of showing substantial need and undue hardship, and the relators remained free to discover the underlying facts at issue in two bullet points.²³ While the facts stay available, need for the facts does not become need for the lawyer’s paper.

A showing succeeds when it ties identified materials to a contested issue. A showing that the materials were needed to establish or defeat an essential element of a claim or defense should suffice.²⁴ Unavailability from any other source strengthens the case. SFEG Corp. v. Blendtec, Inc. recounts a district court that found a party needed Biomet’s clinical data on porous-coated implants to prepare for trial, because the data bore on the utility issue and no other implant manufacturer had such information.²⁵

Need is clearest when the case turns on what the opponent knew. In Payton v. New Jersey Turnpike Authority, the employer defended on the ground that it had investigated the plaintiff’s complaint. The court found need: deposing the same informants “would not necessarily replicate what those informants told the Authority,” and the plaintiff needed to know exactly what the defendant knew and when it knew it, which she could learn only from the investigatory materials.²⁶ In re Intel Corp. Microprocessor Antitrust Litigation reached a similar result. The special master found substantial need for non-core work product because the requesting parties were entitled to test Intel’s version of what went wrong and could not be forced to rely on Intel’s description of what its custodians had reported.²⁷

A stem in which the requester says only that the material is relevant, might be helpful, or would aid cross-examination describes the showing that fails. A stem that ties a specific document to an essential issue, or to a record the requester cannot recreate, describes need, and the analysis then turns to hardship.

Undue Hardship

The second half of Rule 26(b)(3)(A)(ii) requires the requesting party to show that it “cannot, without undue hardship, obtain their substantial equivalent by other means.”³¹ Need asks why these materials matter to the requester’s case. This half asks what the requester could do instead, whether that is interviewing a witness, taking a deposition, or collecting the underlying documents. The target is the substantial equivalent of the information, so a requester has no claim to the particular paper if the same information is reachable another way, and the word undue excludes the ordinary burdens every litigant bears.

The requirement keeps the exception narrow because the protection lets each side prepare without handing the results to an opponent. The doctrine encourages attorneys to write down their thoughts and opinions knowing that opponents will not rob them of the fruits of their labor, and Justice Jackson observed that discovery “was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.”³² A requester who could reach the same facts through its own interview, yet asks for the opponent’s file instead, would be borrowing those wits. An absolute bar would err the other way and leave facts that can no longer be rebuilt locked in a lawyer’s file, so the hardship test sits between the two.

The plaintiff in Hickman fell short on this half. He could obtain the survivors’ testimony before an investigating board, and that testimony was even closer in time to the accident than the statements the lawyer took, so both sides had a more or less contemporaneous record.³³

For witness statements, the “other means” are interviewing the witnesses directly, so the hardship question becomes a question about the witness.³⁴ Courts have often found the showing made where the witness is dead, beyond the court’s reach, hostile, or memory-impaired.³⁵ Whether the information is otherwise available to the requester is the single most important factor, which is why discovery of witness statements usually fails when the requester can interview or depose the witness. The added expense of doing so ordinarily does not change the result.³⁶ The corollary is that production will be required when the witness is no longer available and the requester cannot otherwise obtain the witness’s version of the facts.³⁷

Both documents are work product, and what moved the answer was whether anything could stand in for them.

An available witness does not automatically end the inquiry, because the substitute must be a true equivalent. A statement taken nearest the event may reflect the witness’s perception most accurately, a notion the commentary finds amply supported by psychological studies and common sense.⁴⁰ A requester can therefore argue that a later deposition falls short of a prompt statement, and Hickman may be distinguishable for that reason from cases in which the requester has no comparably early record.⁴¹

Distance and hostility carry less weight when the target is counsel’s own notes. In Upjohn Co. v. United States, the Government stressed that the interviewees were scattered across the globe and that the company had forbidden its employees to answer questions it considered irrelevant. The Court answered that Hickman’s language did not apply to oral statements made by witnesses, “whether presently in the form of [the attorney’s] mental impressions or memoranda,” and that as to such material it did “not believe that any showing of necessity can be made under the circumstances of this case so as to justify production.”⁴² The two lines fit together once we ask what each requester sought. A witness’s own statement fills a real gap when the witness cannot be reached. Counsel’s notes record the lawyer’s selection and impressions of what a witness said, and the difficulty of reaching witnesses gives no reason to hand those over. The discussion of opinion work product later in the chapter develops that higher protection.

Cost is the other main source of hardship, and here the court must separate routine costs from undue ones. Suppose Toyota has prepared summaries of more than 750,000 dealer repair invoices, and an individual plaintiff named Painter seeks them. Painter could in theory obtain the substantial equivalent by reviewing and summarizing the invoices himself. All discovery imposes some hardship in the form of searching, reviewing, and photocopying, and courts are unlikely to find such routine costs undue. But reviewing and summarizing 750,000 invoices would be a substantial burden, especially for an individual plaintiff, and the numbers suggest a greater than routine cost and possibly an undue hardship, particularly against the relatively low cost of simply obtaining Toyota’s summaries. The proportionality requirement of Rule 26(b)(1) points the same way.⁴³

Scale can make the alternative impractical along a different axis. In re Intel Corp. Microprocessor Antitrust Litigation involved materials reflecting what Intel’s custodians had reported about preservation. The requesting parties said they sought “an efficient mechanism to get the whole story out without embarking on a world tour of costly . . . preservation depositions,” and the special master agreed that they should not be saddled with the prospect of deposing over 1,000 custodians, nor forced to settle for a sampling of the custodian pool.⁴⁴ A single witness interview costs little by comparison, which is why the insurer’s transcript above stayed protected.

Steps three and five are where fact patterns usually set the trap. A stem that stresses the expense of an interview or deposition describes a routine cost, while a stem that places the witness beyond reach, or the alternative at the scale of a thousand depositions, describes hardship. Hardship without need fails and need without hardship fails, so the requester must satisfy both halves of the clause.

Even a requester who satisfies both halves receives only first-tier material. Wellstar Health System, Inc. v. Jordan describes Rule 26(b)(3) as establishing two tiers of protection. Work prepared in anticipation of litigation by an attorney or the attorney’s agent is discoverable only on a showing of need and hardship, while “core” or “opinion” work product, the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation, is generally afforded near absolute protection.⁴⁵ SEC v. Collins & Aikman states the same two tiers and adds that the protection extends to materials prepared by an attorney’s agents and consultants.⁴⁶ The court must still protect that second tier even when it orders production of the first, a limit taken up in the next section.⁴⁷