Also known as: undue hardship defence · undue hardship defenses · undue hardship defences · undue hardship
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A showing that a party has substantial need for materials prepared in anticipation of litigation and cannot obtain their substantial equivalent by other means without undue hardship. This showing overcomes qualified work product protection and permits discovery of fact work product while opinion work product remains shielded.
A factor establishing that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable when the harm is significant and the actor could avoid the harm in whole or in part without undue hardship.
Each sense below has its own examples, sources, and questions.
A showing that a party has substantial need for materials prepared in anticipation of litigation and cannot obtain their substantial equivalent by other means without undue hardship. This showing overcomes qualified work product protection and permits discovery of fact work product while opinion work product remains shielded.
Select any source to read its text and confirm it supports the definition.
Lakeside Warehousing sued Harbor Mutual after a fire. Harbor Mutual's adjuster notes and investigator reports were prepared after the insurer anticipated denying coverage. Lakeside moved to compel. The court required Lakeside to demonstrate substantial need for the materials and that it could not obtain equivalent information through depositions or its own investigation without undue hardship before ordering production of fact work product.
Vincent and crew members sued Coastal Marine after a chemical spill. Maritime counsel interviewed crew and dock workers days later and prepared notes. The plaintiffs sought the notes in discovery. The court held that the notes qualified as work product and denied production absent a showing of substantial need and inability to obtain the information without undue hardship through other means.
Uliana Ustinova's advocacy group faced potential enforcement of a statute. In related discovery, the group sought internal agency preparation materials. The court applied the undue hardship defense standard and required the group to show substantial need and inability to obtain equivalent information without undue hardship before compelling production of work product.
The party must demonstrate substantial need for the materials to prepare its case and that it cannot obtain their substantial equivalent by other means without undue hardship. Even if that showing succeeds, the court must still protect opinion work product containing mental impressions and legal theories.
Supporting sources
No. The defense applies to materials prepared by or for a party or its representatives in anticipation of litigation. Engineering teams, claims adjusters, and other non-attorney representatives can create protected work product that requires the same substantial need and undue hardship showing.
Supporting sources
A factor establishing that an intentional invasion of another's interest in the use and enjoyment of land is unreasonable when the harm is significant and the actor could avoid the harm in whole or in part without undue hardship.
Select any source to read its text and confirm it supports the definition.
Ulf Ulfsson operated a cement plant whose dust emissions substantially interfered with neighboring properties. The neighbors proved the harm was significant. Ulf could have installed feasible controls to reduce emissions without undue hardship to the plant's operations. The court therefore found the invasion unreasonable and granted injunctive relief.
The invasion is unreasonable if the resulting harm is significant and the actor could avoid the harm in whole or in part without undue hardship. This factor is weighed with the gravity of the harm and the utility of the conduct.
Supporting sources
…sure, run out at the same time, his multi-millions, wisely invested, should enable him to meet his alimony commitments without undue hardship. Child Support The appellant’s third contention that the trial court erred in awarding the appellee $1,500 per month in child support when both parties had a “surplus of income” and…
…and exceptional situation of the property, the strict application of a zoning ordinance would result in exceptional and undue hardship
…if the harm to a neighbor is substantial and "it would be practicable for the actor to avoid the harm in whole or part without undue hardship
…argue that the Third Restatement would accomplish a “radical departure” from existing public policy because it would impose “an undue hardship
…an employee non-competition covenant as reasonable if it "simply protects the legitimate interests of the employer imposes no undue hardship
Umar Usmani sued Universal Motors after a product failure. The company withheld engineering notes prepared after it anticipated litigation. Umar moved to compel. The court required Umar to establish substantial need for the notes and that equivalent information could not be obtained without undue hardship before ordering any production.
The privilege protects communications between corporate counsel and employees at all levels when made at the direction of superiors for the purpose of securing legal advice. The undue hardship defense addresses only work product and does not overcome privilege protection.
Supporting sources
The court may order production of fact work product but must protect against disclosure of mental impressions, conclusions, opinions, and legal theories. Redaction or in camera review is typically used to shield opinion content even when the undue hardship showing is met.
Supporting sources