Unlike the absolute attorney-client privilege (and the absolute or nearly absolute opinion work product doctrine protection), a litigant can overcome the adversary’s fact work product protection if it “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
In Luttrell v. DN Solutions America Corp., Case No. 4:21-cv-00960-SEP, 2024 U.S. Dist. LEXIS 211015 (E.D. Mo. Nov. 20, 2024), plaintiff sued the designer, manufacturer and seller of a machine that allegedly malfunctioned — killing her husband in an industrial accident. She sought records related to the inspection and repair of the machine 22 days after the accident. Rejecting defendants’ argument that plaintiff could have quickly hired a lawyer and thus participated in the inspection and witnessed the repair, the court ordered defendant to produce the documents — “[w]ithout disclosing anything containing the mental impressions, conclusions, opinions, or legal theories of [defendant]’s attorney or other representative concerning the litigation.” Id. at *10-11.
Defendants in such situations often wisely assure that any opinions or conclusions are either segregated from the purely factual content or are so obviously opinion-laden that a court would approve their redaction.
