Last week's Privilege Point described a court’s rejection of work product protection for a preprinted post-accident form with seemingly helpful boilerplate language about its purpose and a lawyer's involvement — but without any follow through. Courts take a similar "intensely practical" view of an adversary's attempt to overcome a litigant's work product protection by arguing that the adversary had "substantial need" for the work product and the inability to obtain the "substantial equivalent" without "undue hardship."

In Whitmore v. CBK Resort Holdings, LLC, Civ. A. No. 3:21-cv-01606, 2022 U.S. Dist. LEXIS 124360 (M.D. Pa. July 13, 2022), plaintiff suffered injuries while using a simulated wave amusement ride at an indoor water park. Plaintiff sought a park employee’s recorded statement about the accident — noting that there was no video of what happened, the employee was the "only eye-witness to this incident," and that the employee refused to speak with plaintiff's agent about what had happened. Id. at *8-9. The court rejected plaintiff's motion, noting (among other things) that plaintiff had not yet deposed the employee. Five days later, the court in Havener v. Gabby G. Fisheries, Inc., Civ. A. No. 21-10260-DJC, 2022 U.S. Dist. LEXIS 126499 (D. Mass. July 18, 2022), reached the identical result after plaintiff suffered injuries while working on defendant's boat. Because "plaintiff has not yet deposed the witnesses whose statements [defendant’s insurance investigator] recorded it is premature to find that plaintiff has demonstrated a substantial need for or lack of a substantial equivalent for the interview materials." Id. at *14-15.

In assessing both litigants' creation of purportedly protected work product material and adversaries' attempt to overcome that protection, courts take a common-sense "intensely practical" approach — frequently letting discovery play out before ordering production of withheld documents.