Concept
Substantial Need and Hardship
Can the protection be overcome? Substantial need and opinion work product
Substantial Need and Hardship
Material that clears the Rule 26(b)(1) gate still carries qualified protection, and the requester overcomes it only by satisfying Rule 26(b)(3)(A)(ii): the party must show that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.1 The rule links its requirements with “and,” once between the discoverability condition and this one and again inside subsection (ii), so the requester must satisfy every one.2 A party who proves a pressing need for a memorandum but leaves an easy route to the same facts has satisfied half the rule. A party who proves the material hard to replace but never explains why its case depends on it has satisfied the other half. In both situations the protection holds.
This showing governs ordinary work product only. Courts describe Rule 26(b)(3) as establishing two tiers of protection: work prepared in anticipation of litigation by an attorney or his agent is discoverable only on a showing of need and hardship, while “core” or opinion work product, which covers the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation, is “generally afforded near absolute protection from discovery.”3 Decisions such as Pittman v. Frazer and SEC v. Collins & Aikman frame the analysis this way. This unit covers the first tier; opinion work product follows in the next section.
The two prongs guard against different abuses. The need prong stops a party from searching counsel’s file to make sure nothing has been overlooked, the showing the plaintiff made unsuccessfully in Hickman.4 The equivalence prong stops a party with a genuine need from taking the lawyer’s file when it can meet that need by its own effort, and whether the information is otherwise available to the requester is the single most important factor in deciding whether to allow discovery.5 Need alone would let any party who required a fact demand the lawyer’s file, though an interview would produce the fact at modest cost. Hardship alone would let a party call any task expensive and claim any file. Together the prongs keep discovery open for evidence that is truly unique and deny a free ride on the other side’s investigation.
The requester carries the burden on both prongs. Hickman states the policy: the rule against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to the orderly working of our legal procedure that “a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.”6 Rule 26(b)(3) drew on that discussion, and the requester normally makes its showing by filing an affidavit in support of a motion to compel discovery.7
Showing Substantial Need
The first prong requires the requester to show that it has substantial need for the materials to prepare its case, and the requester must satisfy the court that the need exists.8 The words “to prepare its case” tie the need to the requester’s own trial preparation, which sets this prong apart from the scope gate. The gate asks whether the material falls within Rule 26(b)(1); this prong asks why this requester must have these particular materials. Because the rule makes discoverability and need separate conditions, relevance cannot satisfy need.9
Several showings that feel persuasive to a requester fail. A wish to make sure nothing has been overlooked fails, as it did in Hickman, where no attempt was made to establish any reason why the lawyer should be forced to produce the written statements.10 A mere surmise that the material sought may be useful also fails.11 Republic of Haiti v. Crown Charters, Inc. applied the same reasoning to a party that sought to depose opposing counsel on the chance that they knew something helpful. Each of these showings describes what counsel’s file might contain, and none says what the requester cannot prepare its case without.
Specificity separates failure from success. An affidavit that merely alleges a need for the materials “to help prepare . . . to examine witnesses” is doomed to failure, as in Delco Wire & Cable, Inc. v. Weinberger.12 A showing that the materials were needed to establish or defeat an essential element of a claim or defense, in contrast, should suffice.13 The difference lies in what the court can weigh. A general hope gives the court nothing to measure, while a tie between particular materials and a particular element shows the court what the requester would lose without them.
A stated purpose of impeaching or corroborating other evidence can anchor a need showing, but it cannot complete one. Hickman names impeachment and corroboration among the uses that written statements and documents may serve. The same passage places on the requester the burden of establishing adequate reasons, and the Court refused production in the case before it.14 The label begins the showing, and the requester must finish it with reasons specific to its own case.
A showing succeeds when it ties specific materials to something the requester must prove, defend against, or test. In re Intel Corp. Microprocessor Antitrust Litigation, AMD and the Class Plaintiffs sought the Weil Materials, and the special master concluded that they had demonstrated substantial need for the non-core work product in those materials to meet Intel’s case on preservation issues.15 The need arose from an issue in the opponent’s case that the plaintiffs had to meet. The words “non-core” show that the showing reached ordinary work product, not opinion work product.
Need and hardship remain separate questions. Showing that the case depends on the material says nothing yet about whether another route to the same facts exists, and the Intel plaintiffs still had to address undue hardship, as the next part shows.
No Substantial Equivalent
The second prong turns on the requester’s alternatives. The requester must show that it “cannot, without undue hardship, obtain their substantial equivalent by other means.”17 The court asks what the requester actually wants from the material, usually the facts the lawyer recorded, and whether it can reach those facts some other way at tolerable cost. Availability of the information is the single most important factor, because a requester who can reach the same facts by its own effort has no reason to take the other side’s file.18
Witness statements show the inquiry most clearly, because the obvious alternative to a lawyer’s record of what a witness said is the witness. Discovery of a witness’s statement usually is denied when the requester can interview the witness directly or take the witness’s deposition, and the added expense of doing so is not usually enough, standing alone, to justify discovery. When the witness is no longer available, so that the requester cannot obtain the witness’s version of the facts, production of the statement will be required.19 Courts have often found undue hardship where the witness is dead, beyond the court’s reach, hostile, or memory-impaired.20 Hickman drew the same line when it said that production might be justified where witnesses are no longer available or can be reached only with difficulty.21
Hickman also supplies the classic failure on this prong. When the tug John M. Taylor sank and five of its nine crewmen drowned, the owners’ lawyer privately interviewed the four survivors and obtained signed statements. The survivors had already testified at a public hearing before the Steamboat Inspectors, and that testimony was recorded and made available to all interested parties.22 The plaintiff therefore had access to a record of what the survivors saw, made even closer to the accident than the lawyer’s statements, and the Court found no room for its discretion to operate in his favor.23
The word “substantial” makes the comparison turn on what the alternative would actually deliver. An available witness may still deliver less than the statement did: a hostile witness may withhold what the statement records, and a witness whose memory has faded cannot reproduce it.24 One view goes further and treats the passage of time itself as enough, on the theory that the statement taken nearest the event most accurately reflects the witness’s perception, a notion that psychological studies and common sense support. Hickman seems to cut against that view, but it may be distinguishable, because the survivors’ recorded hearing testimony there was given even earlier than the lawyer’s statements, so both sides already had a more or less contemporaneous record.25 You should therefore treat the time-lapse position as an argument a requester may make and not as the rule.
Exam questions often pair two witnesses and ask which statement the requester can reach. When a defendant driver’s insurer interviews a non-party eyewitness and prepares a transcript, the injured plaintiff can conduct the same interview, so a court will probably find that the qualified immunity is not overcome.26 When a corporate defendant holds a statement from its own employee, probably taken soon after the accident, the plaintiff can argue that the statement is the most reliable account because of its timing, and the defendant will answer that the plaintiff can depose the employee. The plaintiff replies that a deposition is unlikely to be the substantial equivalent, since the employee would probably be hostile and reluctant to say anything harmful to his employer, so the plaintiff will probably get the statement.27 What separates the two scenes is whether a later interview or deposition would give the plaintiff the same account.
The prong is decided on the requester’s evidence about its actual alternatives. In SFEG Corp. v. Blendtec, Inc., the court quoted the rule and found that Blendtec had made no such showing, noting that the witness was Blendtec’s own former employee and that the record did not contain the evidence a showing requires.28 A movant who cannot point to such evidence loses.
Even when another route exists, the second half of the prong asks whether using it would impose undue hardship, and “undue” must mean more than the ordinary burden of litigating. Added expense from interviews or depositions is not usually enough, standing alone, to justify production.29 Routine costs of discovery are unlikely to qualify, although a burden greater than routine, measured against the low cost of the alternative, may.30 If ordinary cost satisfied the prong, every requester could claim hardship and the qualified immunity would vanish. Rule 26(b)(1)’s proportionality requirement supplies the measure for separating routine cost from undue cost.31
A published hypothetical shows both sides of that line. Suppose a manufacturer’s work product consists of statistical summaries compiled from over 750,000 dealer repair invoices. The requester could in theory obtain the substantial equivalent by discovering and collating the invoices themselves, which are ordinary business documents and not work product.32 The numbers suggest a greater-than-routine cost, and so possibly an undue hardship, especially beside the low cost of the alternative, which is obtaining the manufacturer’s own summaries.33 A requester who can depose three willing witnesses faces only the ordinary price of litigating, and the court will not shift that price onto the opponent’s file.
A very large set of alternatives can cross the line. In Intel, the plaintiffs described their request as “an efficient mechanism to get the whole story out without embarking on a world tour of costly . . . preservation depositions.” The special master agreed that AMD and the Class Plaintiffs should not be saddled with the prospect of deposing over 1,000 custodians and could not be forced to settle for a sampling of the custodian pool.34 The deposition route existed on paper, but its burden was enough, in the special master’s view, to excuse the requester from taking it. Decisions such as Deuterium Corp. v. United States and Riggs National Bank of Washington, D.C. v. Zimmer apply the second prong to the particular materials before the court, asking whether this requester could get the same information elsewhere without undue hardship.
Behind all of these alternatives sits a feature that keeps the second prong demanding: the doctrine protects counsel’s work and leaves the facts open. A party asked a factual question must answer it even though its lawyer learned the answer while preparing for trial, because the doctrine does not protect facts from discovery, even if they are learned through trial preparation.35 Courts also look at what ordinary discovery will yield anyway. One court acknowledged that selecting documents for use in depositions “is often more crucial than legal research,” yet reasoned that the information such lists spotlight “will undeniably be gained during the course of the deposition,” so that a protocol requiring identification “merely adjusts the timing of disclosure.”36 The next part on selection and compilation returns to that reasoning.
A defendant that holds a statement from a passenger who is available and can recall the accident therefore keeps the statement protected, because the plaintiff cannot show substantial need and undue hardship in obtaining the passenger’s own account. The defendant must still disclose the passenger as a witness, in its initial disclosures if it will use her to support a claim or defense, or in answer to a proper interrogatory, and the plaintiff may then seek her account directly.37 Protection also reaches the working papers behind a finished product. Courts generally, including those that would deny protection to a signed affidavit, hold that information relevant to the evolution of an affidavit, such as communications with counsel about it, prior drafts, and counsel’s notes made while drafting, is protected work product.38
Satisfying both prongs reaches ordinary work product, but it does not end the court’s task. If the court orders discovery of those materials, 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.39 That duty applies even after the requester has made the full showing of need and undue hardship.40 Some courts have gone further and treated certain opinion work product as ironclad, and the Supreme Court has made no commitment on the correct standard for revealing it.41 The next section takes up opinion work product.