June 2007
Witness Statements Discoverable Where Requesting Party Shows Substantial Need and Inability to Obtain Substantial Equivalent Without Undue Hardship
Litigants are regularly faced with requests for witness statements obtained during the investigation of a claim or lawsuit. Many attorneys willingly disclose such statements, though they are generally deserving of protection as attorney work product. However, even that protection can be overcome under the right circumstances.
In re: Complaint of Omega Protein, Inc., 2007 U.S. Dist. LEXIS 3632 (W.D. La., Jan. 17, 2007), presents a typical case where the court was required to balance the protections of the work product doctrine against the requesting party's asserted need for the discovery. In this declaratory judgment action arising out of an allision between a fishing vessel owned and operated by the plaintiff, Omega, and an off-shore platform owned by Samson Contour Energy E&P, LLC ("Samson"), Samson sought discovery of witness statements taken of certain Omega employees that were crewmembers on the ship. The court found there to be "little dispute by the parties that the statements at issue were taken in anticipation of litigation and are protected by the work-product doctrine." Id. at *7. However, the captain of the ship acknowledged in his deposition that "his memory of the event was not as good as it would have been two years" previously when he had given his statement. Id. In addition, Samson demonstrated that, despite spending over $4,800 on investigative efforts, it was unable to locate the other crewmembers who had given statements. Id. at *8. The magistrate, therefore, held that Samson had demonstrated both "substantial need" for the work product material, and that it was "unable without undue hardship to obtain the substantial equivalent of the materials by other means," as required by Fed. R. Civ. P. 26(b)(3), and ordered the disclosure of the witness statements. Id. at *7, 9.
Parties may spend significant resources investigating claims in anticipation of litigation, and are entitled to the protections of the work product doctrine. However, that protection is not absolute, and can be overcome under the right circumstances. The attorneys at Moran Reeves & Conn PC are prepared to advise corporate and individual clients on matters of civil procedure, attorney-client privilege, and the work product doctrine as part of a comprehensive litigation strategy. Please call any of the firm's lawyers for further information at (804) 421-6250.