Concept
The Otherwise-Discoverable Threshold
Can the protection be overcome? Substantial need and opinion work product
The Otherwise-Discoverable Threshold
Rule 26(b)(3)(A) lets a requester reach work-product material on two conditions, and the first is that the material be "otherwise discoverable under Rule 26(b)(1)."1 That phrase cross-references the general scope-of-discovery rule, which defines what is discoverable before any special protection is considered. Under that rule, a party may obtain discovery of any nonprivileged matter that is relevant to a party's claim or defense and proportional to the needs of the case. Proportionality turns on the importance of the issues at stake, the amount in controversy, the parties' relative access to information, their resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the discovery outweighs its likely benefit. Admissibility is not required.2
Material is therefore otherwise discoverable when it is:
- nonprivileged;
- relevant to a party's claim or defense; and
- proportional to the needs of the case.
Coburn Group v. Whitecap Advisors LLC states the two conditions as cumulative. Work-product materials may be discovered only if they are otherwise discoverable under Rule 26(b)(1) and the requesting party also shows substantial need and an inability to get the substantial equivalent without undue hardship.3 The first condition is a gate. It asks whether the material belongs among discoverable things at all, and a court asks it before turning to the harder question of need.
The word "otherwise" explains how the gate works. The exception removes the work-product bar from material that would be discoverable but for that bar, and it does nothing more. A strong showing of need therefore leaves the scope of discovery where Rule 26(b)(1) put it. Material outside that scope does not come inside because the requester wants it badly, whether it is irrelevant, disproportionate, or privileged.
The same reasoning shows why relevance cannot carry the need prong. Rule 26(b)(1) already requires relevance to a claim or defense, so a motion that shows only relevance has satisfied (A)(i) and has not yet addressed (A)(ii). A requester's wish to make sure nothing has been overlooked does not amount to need either. That was the showing the plaintiff in Hickman made without success. A showing that the materials were needed to establish or defeat an essential element of a claim or defense should suffice.4
Privileged material stays out whatever the requester shows. Rule 26(b)(1) reaches only nonprivileged matter, so a privileged communication fails (A)(i) before need is ever weighed.5 The showing in (A)(ii) addresses the work-product bar alone, so it gives a requester no way around a privilege.
Whether the memorandum is also work product does not matter once the privilege applies, because the privilege alone keeps it outside Rule 26(b)(1). Material that clears the gate looks different.
Clearing the gate earns the requester only the chance to make the need showing, and the photographs stay protected until that showing succeeds. The proportionality language of Rule 26(b)(1) also keeps operating after the gate is passed. Burden, expense, relative access, and resources are the considerations a court uses when it asks whether getting the substantial equivalent elsewhere would impose an undue hardship. One secondary-source example treats a greater-than-routine cost as a possible undue hardship, especially when it is set against the low cost of an available alternative, and it cites the proportionality requirement for the comparison.6