Is Attorney Work Product Still Privileged if We REALLY Need it?
You might expect an unequivocal yes in response to that question, but “it depends” is more appropriate because the Attorney Work Product privilege is not an absolute privilege. This blog post goes over the “substantial need” exception, that some people refer to as the “unavailability” exception. Attorneys who don’t familiarize themselves with these exceptions may experience some unpleasant surprises in the form of a judge ordering them to produce a document they expected privilege to shield.
The unavailability/ substantial need exception allows for disclosure of attorney work product where counsel can demonstrate a substantial need for the documents and that it would cause an undue hardship to otherwise obtain the sought relevant information from an unprivileged source. This exception generally applies to ordinary or fact work product, as an attorney’s mental process in preparing for litigation would not usually be subject to disclosure under discovery rules. This means that opinion work product IS an absolute privilege and its protections cannot be overcome by a showing of substantial need and undue hardship.
This exception applies only to fact/ordinary work product. The more a document / material consists of an attorney’s mental impressions, processes, or strategies, the more protection it will have from production in discovery.
For fact/ ordinary work product, Courts consider several factors when determining if a substantial need exists: relevance, availability of other similar evidence, and potential for impeachment, since the substantial need exception often comes into play when counsel intends to use the work product to impeach a witness’s statement. A demonstration that the document is relevant to the case is NOT sufficient on its own for this exception to apply; the party challenging the privilege must make a showing that they will be prejudiced if the material isn’t disclosed.
Further, an attorney can establish an undue hardship by proving that they have tried and failed to obtain the documents / materials or the substantial equivalent of the documents / materials, or that they are unable to obtain them from another source.
Keep in mind: this exception does NOT apply to the Attorney-Client privilege, because it would defeat the purpose of attorney-client privilege, which we will discuss in a future post.
*photo credit to Relativity
