Also known as: undue risks, burdens or humiliations · undue hardship
Written by attorneys · grounded in primary & secondary sources — see below
An excuse from the duty to mitigate damages that applies when the injured party would face excessive risk of further loss, excessive cost or effort, or significant embarrassment or loss of dignity in taking mitigation steps.
Usman Uddin sues a manufacturer after a product defect causes injury. The manufacturer withholds interview notes prepared by counsel in anticipation of litigation. Usman moves to compel but cannot locate the interviewed employees or obtain equivalent facts through other discovery. The court denies the motion because Usman fails to demonstrate substantial need and inability to obtain the equivalent without undue risk, burden or humiliation.
Unity Underhill is constructively discharged from her job. Her former employer offers unconditional reinstatement. Unity rejects the offer because it would require daily contact with the supervisor who created the hostile environment. The court holds that rejection does not bar recovery of damages because accepting the offer would impose undue risk, burden or humiliation.
Select any source to read its text and confirm it supports the definition.
Umar Usmani, an investor, sues a collapsed hedge fund. The fund's counsel prepared memoranda summarizing interviews with traders conducted after the collapse in anticipation of litigation. Umar moves to compel the memoranda but makes no showing of substantial need or inability to obtain the facts through depositions. The court denies the motion because the materials are protected work product that cannot be obtained without undue risk, burden or humiliation.
Ulysses Ulrich operates a factory whose emissions substantially interfere with a neighbor's use of land. The neighbor sues for nuisance. Ulysses shows that installing emission controls would require shutting down operations for months at prohibitive cost. The court finds the invasion unreasonable only if the harm can be avoided without undue risk, burden or humiliation.
The requesting 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. Opinion work product receives heightened protection even when this showing is made.
The injured party need not mitigate when doing so would expose it to undue risk, burden or humiliation. Reasonable but unsuccessful efforts to mitigate do not bar recovery even if they fail.
Yes. Communications between corporate counsel and any employee are privileged when made at the direction of superiors for the purpose of securing legal advice. Work-product protection separately shields materials prepared in anticipation of litigation absent a showing of substantial need and undue hardship.
The invasion is unreasonable if the harm is significant and the actor could practicably avoid it in whole or in part without undue hardship. The rule focuses on the practicality of avoidance measures rather than absolute prevention.
…agreement was not supported by consideration and that the restrictions in the agreement were overly restrictive and imposed an undue hardship on him. {¶ 4} Columber could remember very little about the presentation or execution of the noncompetition agreement. He could not remember whether he had been told that his continued…