Also known as: substantial needs
Written by attorneys · grounded in primary & secondary sources — see below
A showing that materials prepared in anticipation of litigation are necessary to prepare a party's case and cannot be obtained through other means without undue hardship.
Simon Stern sues Skyline Construction after a scaffold collapse. Skyline's insurer interviewed a bystander and prepared a transcript shortly after the incident. Simon moves to compel the transcript. He shows that the bystander has since moved abroad and cannot be located for deposition. The court orders production because Simon has demonstrated substantial need and no substantial equivalent is available without undue hardship.
Sophia Singh sues Sterling Dynamics for employment discrimination. Sterling's in-house counsel directed mid-level managers to prepare memos summarizing employee interviews after receiving a demand letter. Sophia seeks the memos. She shows that several interviewed employees have left the company and cannot be reached. The court finds substantial need and orders production of the factual portions while protecting any attorney mental impressions.
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The party must show both that the materials are necessary to prepare its case and that it cannot obtain their substantial equivalent by other means without undue hardship. Mere relevance is insufficient. The showing must be made by affidavit or other evidence when moving to compel.
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No. Even when substantial need is shown, the court must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a party's attorney or representative. Opinion work product receives heightened protection and is rarely discoverable.
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No. Death or unavailability is relevant but does not automatically satisfy the standard. The requesting party must still show that the specific materials are necessary and that no substantial equivalent can be obtained without undue hardship.
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If documents were not prepared in anticipation of litigation, they are not work product and substantial need need not be shown. When documents qualify as work product, the requesting party must still make the substantial-need showing regardless of any ordinary business purpose.
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…processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC ¶ 9277, p. 83,604. Rule 26 goes on, however, to state that "[i]n…