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56. Should the court grant the roofer access to the photos and memo?
The baker then brought suit in federal court against a roofer who had been working on the roof shortly before the fire broke out. The roofer declared his intention to seek to discover the photos taken and the memo written by the insurance company employee. The baker protested, citing work-product privilege. The court found that the insurance company anticipated litigation as soon as it learned of the fire.
A baker owned and ran a small bakery. One evening, a fire broke out at the bakery, and the baker promptly notified his insurance company. The insurance company sent an employee to the bakery, who arrived while the fire department was still extinguishing the flames. This employee photographed the scene in detail and prepared a memorandum describing what he photographed and how he interpreted what he photographed.
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Material could be privileged against discovery if it would be protected against disclosure at trial. Certain immunity from discovery is given to the materials prepared by counsel for trial purposes under FRCP 26(b)(3). This immunity is often referred to as «work-product» immunity since it protects the lawyer's work.
The work-product immunity can be further divided into two subgroups: qualified or absolute. Documents containing subjective thoughts, such as legal theories, conclusions, opinions, and mental impressions, of a party's lawyer or other representatives are given absolute immunity from discovery, which is nearly impossible to overcome. All other documents prepared for litigation by either party are given qualified immunity. Qualified immunity can be overcome by the discovering party showing a substantial need for the materials and that their equivalent is not available through other means. Fed. R. Civ. P. 26(b)(4).
To determine whether a party seeking discovery of qualifiedly privileged material cannot, without undue hardship, obtain the equivalent information through other means, the court will consider the following factors:
(i) the cost of obtaining the desired information through means other than the discovery of the privileged material;
(ii) the finances of the party seeking discovery, AND
(iii) if what is sought is a transcript of a witness's statement, the hostility of the witness to the discovering party.
C is correct. Absolutely privileged work product such as documents containing mental impressions, opinions, conclusions, or legal theories, cannot be compelled by the need for information. Qualified privileged work product such as evidentiary or factual material prepared for litigation purposes (e.g., the testifying witness is unavailable, but their attorney has a witness statement), may be compelled by court order if the opposing party proves two elements:
(i) a substantial need for the material, and
(ii) the material is not available through other means. Thus, a request for production would not be proper for the production of work product.
Because the information the roofer seeks to discover is work product, the roofer would only be able to obtain such information through a court order. The baker's insurance agency sent out an employee to document the effect of the fire in anticipation of litigation. The insurance agency documented the effect of the fire through photography and its memorandum; therefore, this information will be protected unless compelled by a court order.
A is incorrect. As mentioned above, the information is work product and is, therefore, privileged information. The roofer may seek discovery of the work product only upon court order.
B is incorrect. Because the insurance company anticipated litigation as soon as it learned of the fire, the information the roofer seeks is work product. Moreover, the discovering party has no authority to require the party from whom discovery is sought to exercise the option to produce business records. Thus, this discovery request for interrogatories is not proper for the production of work product.
D is incorrect. The roofer's failure to immediately send its own investigator to the site of the fire (if it could have done so) will not disqualify him from getting the work product. If it is considered qualified privileged work product, the opposing party must show the two elements listed above to get a court order.