Also known as: substantially equivalent · substantial equivalents · substantially equivalents · substantial equivalence · doctrine of equivalents
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A body of information or materials that serves as an alternative to protected work-product documents. A requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain this alternative without undue hardship before a court will order production.
A body of information or materials that serves as an alternative to protected work-product documents. A requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain this alternative without undue hardship before a court will order production.
Scott Summers sued Skyline Construction after a scaffolding collapse. Skyline's risk manager prepared post-incident reports under counsel's direction. Summers moved to compel the reports. The court ordered production only after Summers proved both substantial need for the materials to prepare expert testimony and that no other discovery could supply the same information without undue expense and delay.
A means or manner of payment that is commercially equivalent to the contractually agreed method. When governmental regulation renders the original payment method unavailable, the buyer may satisfy the obligation by tendering this alternative, discharging the duty unless the regulation is discriminatory, oppressive, or predatory.
Stonehaven Properties contracted to purchase equipment from Sterling Manufacturing with payment by letter of credit. A new foreign regulation blocked letters of credit. Sterling refused delivery until Stonehaven offered wire transfer under the regulation's terms. The court held that the wire transfer constituted a commercially substantial equivalent, discharging Stonehaven's obligation.
A means or manner of payment that is commercially equivalent to the contractually agreed method. When governmental regulation renders the original payment method unavailable, the buyer may satisfy the obligation by tendering this alternative, discharging the duty unless the regulation is discriminatory, oppressive, or predatory.
Each sense below has its own examples, sources, and questions.
Sylvia Santos sued a trucking company after a highway collision. The company's investigator took a recorded statement from an eyewitness that contradicted the witness's later deposition. Santos showed the statement was essential for impeachment and that interviewing the witness herself could not replicate the prior inconsistent account. The court ordered production of the statement.
Simon Stern challenged an IRS summons directed at his accountant for production of financial ledgers. Stern argued the records were the substantial equivalent of his own compelled testimony. The court rejected the claim because the accountant, not Stern, was the party compelled to act, and no personal compulsion against Stern existed.
The requesting party must demonstrate both substantial need for the materials to prepare its case and that it cannot obtain their substantial equivalent by other means without undue hardship. Even then, opinion work product receives absolute protection.
A prior inconsistent statement is unique for impeachment purposes because interviewing the witness after the fact cannot replicate the earlier contradiction. The rule therefore permits discovery of the statement even though the requesting party could otherwise interview the witness.
No. The Fifth Amendment privilege protects only against personal compulsion. When the summons compels the accountant rather than the taxpayer, no self-incrimination occurs even if the records contain the taxpayer's information.
Yes. Under UCC § 2-614(2), the buyer may tender a commercially substantial equivalent means of payment. If delivery has already occurred, payment by the regulatory method discharges the obligation unless the regulation is discriminatory, oppressive, or predatory.
…main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the "substantial equivalent . . . by other means," Fed. Rule Civ. Proc. 26 (b) (3), i. e. , by interviewing the witness himself. A prior inconsistent statement in the possession of his adversary, however, when sought…