Why Protection Is Qualified

Overcoming Work Product Protection

Why Protection Is Qualified

Work-product protection yields to need. The provision that shields a party's litigation materials, Rule 26(b)(3), also names the conditions under which an opponent can get them anyway: the materials must be otherwise discoverable under Rule 26(b)(1), 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.¹ This unit picks up after a court has already treated a document as work product. Whether a given document qualifies belongs to a neighboring reading. The questions here are what a requester must show to get past the shield, and why the law demands that showing.

Three consequences follow from the way the rule is built. First, the protection is qualified, because it gives way once the conditions are met. Second, the burden falls on the requester, because the conditions are things the requester must show.² Third, the kind of material matters: even when a court orders discovery, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.³ Courts apply the structure as written. Delco Wire & Cable, Inc. v. Weinberger is one example of a court restating it: work-product materials may be discovered only if they are otherwise discoverable and the requester shows substantial need and an inability to get the substantial equivalent without undue hardship, and even then the court must protect opinion work product.⁴

Hickman v. Taylor supplied the model, and Rule 26(b) was later amended to codify the principles the case declared.⁵ After an accident, the lawyer Fortenbaugh privately interviewed the survivors and took signed statements from them with an eye toward anticipated litigation. He also interviewed other people who might know something and sometimes wrote memoranda of what they told him.⁶ The party who wanted those materials never tried to show why Fortenbaugh should have to produce the written statements. It offered only a bare, general demand, and the Court found no room for the trial judge's discretion to operate in its favor.⁷

The Court also stated the principle that became the burden rule. The policy against invading a lawyer's course of preparation is so well recognized, and so essential to an orderly legal system, that a burden rests on the one who would invade it to establish adequate reasons for production.⁸ The rule now frames that burden as substantial need plus an inability to obtain the substantial equivalent without undue hardship.⁹

Hickman voiced two concerns that explain why the burden sits with the requester. If trial-preparation materials were routinely discoverable, lawyers would grow reluctant to keep written records, a result hardly calculated to improve the quality of representation. And routine discovery would let a lawyer ride an adversary's coattails, leaving opposing counsel to do the work and then collecting the results through discovery.¹⁰ Making the requester justify access protects both incentives, and it still leaves a path to the material for a requester with real need.

The phrase "other means" does most of the work in that showing. Suppose Toyota's work product consisted of statistical summaries compiled from over 750,000 dealer repair invoices. A plaintiff could obtain the substantial equivalent by discovering and collating the invoices themselves, which are ordinary business documents and so are not work product.¹¹ The plaintiff must therefore argue that doing so would be an undue hardship, and the sheer volume of the invoices is the natural place to start. Witness statements follow the same logic. The "other means" is interviewing the witnesses directly, so a requester who can show that a witness is dead, beyond the court's reach, hostile, or memory-impaired has often made the required showing of undue hardship.¹²

Hickman did not close that door. The Court said discovery may properly be had where relevant, nonprivileged facts remain hidden in an attorney's file and production is essential to preparing the case. Written statements might be admissible, might point to the existence or location of relevant facts, or might serve for impeachment or corroboration, and production might be justified where witnesses are no longer available or can be reached only with difficulty.¹³ Take an eyewitness who has died, whose statement to counsel is the only surviving account of what that person saw. Refusing production would erase a fact from the case, and the requester would bear the loss. The Court warned that barring production in such circumstances would strip the deposition-discovery rules of much of their meaning.¹⁴

Counsel's own mental impressions fare differently. On opinion work product the Court was adamant: it did not believe that any showing of necessity could be made, under the circumstances of that case, to justify production.¹⁵ The rule keeps that line by requiring the court to protect those impressions even after it orders discovery.¹⁶ Courts call this tier opinion work product, and they distinguish it from other work product, which they sometimes call fact work product.¹⁷ How firm the shield is divides the courts. Some have seemingly treated certain opinion work product as ironclad, as the Eighth Circuit did in safeguarding absolutely a lawyer's personal recollections, notes, and memoranda of witness interviews. The Supreme Court, however, has made no commitment on the correct standard for revealing opinion work product.¹⁸ Later sections take up that dispute.

The qualified character also separates work product from the attorney-client privilege. An evidentiary privilege, unless waived or otherwise lost, bars compelled production absolutely, while work-product protection can be overcome, at least as to certain types of work product, by a sufficient showing of need.¹⁹ The two doctrines also reach different material. Privilege rules protect only direct communications between attorney and client. They do not protect information gathered from witnesses, investigative reports, or internal memoranda, and that gap is why the Supreme Court developed the work-product rule for the federal courts.²⁰ A lawyer's interview of a witness therefore gets no help from the privilege and depends on work product, which is why the requester's showing of need decides so many of these disputes.