Chapter 45 Overcoming Fact Work Product Protection

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 45

OVERCOMING FACT WORK PRODUCT PROTECTION

45.1 INTRODUCTION

Adversaries can sometimes overcome litigants' work product protection.

45.2 COMPARISON WITH THE ATTORNEY-CLIENT PRIVILEGE AND GENERAL RULES

The work product doctrine provides only qualified protection. [45.201]

This contrasts with the absolute attorney-client privilege protection. ¹ [45.202]

Under the federal work product rule, adversaries can overcome litigants' fact work product protection if they establish "substantial need" for the work product, and cannot obtain its "substantial equivalent" without "undue hardship." ² [45.203]

Some courts use the term "substantial need" as a shorthand for all three elements. [45.204]

45.3 "SUBSTANTIAL NEED" FACTOR

To overcome litigants' work product protection, adversaries must first show that they have "substantial need" for the litigants' work product. [45.301]

The "substantial need" element focuses on the work product's importance to the adversaries' case or defense. [45.302]

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Some courts seem to use the term "substantial need" incorrectly, erroneously referring to one of the other two elements. [45.303]

• If courts use the term "substantial need" as a shorthand for all three elements, their analysis may nevertheless properly apply the rule.

In examining the "substantial need" element, courts examine work product's substance, nature, and the type of materials involved. [45.304]

• The "substantial need" element looks for a relationship between withheld work product's content and the litigation's central issues.

• Some courts examine the withheld work product in camera when assessing the "substantial need" element.

Courts defining the "substantial need" element use terms ranging from "unique" to "more than just helpful"—and many gradations in between. [45.305]

Some courts assessing the "substantial need" element consider adversaries' argument that they need litigants' work product for impeachment purposes. [45.306]

• Most courts do not find adversaries' general desire to impeach litigants' witnesses as sufficient, but might order production of litigants' work product if adversaries provide more specific grounds, rather than speculative or conclusory statements that there might be impeachment material in withheld work product.

Some courts find that adversaries can satisfy the "substantial need" element. [45.307]

• Examples include adversaries' argument that they need litigants' work product to understand the scope and breadth of an investigation, which would reflect the "vigor" with which the investigation was conducted; develop the essential elements of the adversary's case; explore an inconsistency between a witness's interview and deposition; support a patent infringement claim; identify exculpatory witnesses; establish falsity, scienter and materiality in a securities case; explore the litigant's statute of limitations defense; show that a qui tam

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	relator is the original source of information; understand the factual basis for a litigant; establish malpractice by a former lawyer; translate from one language to another; sort out differing accounts of a historical event.
VA	A Virginia circuit court 3 held that defendant had a "substantial need" for a court hearing transcript that the plaintiff had arranged for.

Some courts find that adversaries cannot satisfy the "substantial need" element. [45.308]

• Examples include

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