Once it has been determined that the requested material is a work product privilege, the right can be used to avoid discovery. In order to extract the materials from this immunity cloak, the group pursuing discovery will have the responsibility of laying down the following requirements:
1) Materials are required to plan the case of the party;
2) The party is not in a position to acquire the substantial equivalent of the materials by other means without undue hardship;
3) Records and tangible artifacts fall within the general framework of the exploration which basically implies that the content must be appropriate.
These conditions not only safeguard the proprietary element of the work, but also defend against freeloaders who can attempt to rely on the undertaking of the other party to conclude the proceedings successfully.
Court stance
Courts need more than legal analysis or bare statements of need and unwillingness to plead. Rather, proof must provide clear explanations and reasons backed by evidence such as sworn testimony before the court or affidavits. If the three conditions are met, a party may discover the work product of another party, but the discovery court must protect against discrepancy.
The courts have held that the criterion of need encompasses importance and vigilance on the part of the party seeking the discovery of the work product. If the materials are not important and the party seeking the discovery has not been vigilant in the preparation of the case, it is not sufficient to establish the need. Some decisions hold that the need for work product materials can be identified by showing
(1) that the underlying evidence has been destroyed, dismantled, altered or is inaccessible to the same review by the party seeking the discovery;
2) that the retention of materials will defeat the interests of justice;
3) that the materials are not as readily accessible to the group seeking exploration.
Once the party seeking discovery has identified the need for work-product materials, it must be established that the party is not in a position to obtain a substantial equivalent through any other means without unnecessary hardship. Instead, the requesting party would be refused access to the work product if the court decides that the party has the means to discover a substantial equivalent of the materials at its disposal.
It is not necessary to show the need and inability to obtain a substantial equivalent of the materials sought when a party seeks the discovery of his or her own statement previously made on the action or the subject-matter of the action. This evidence is also unnecessary when a person not a party to the action demands a copy of his or her own statement previously made on the action.
Expert Witness
If the facts identified or the opinions expressed by the expert witnesses are open to discovery depends on whether the expert may testify at trial or whether the expert is hired to consult.
The work-product doctrine refers to expert witnesses who do not testify and who are only employed on a consultative basis to assist in the preparation of a trial. Accordingly, their identity and the facts and opinions they hold do not, as a general rule, have to be disclosed. However, there are exceptions which allow the discovery of the work product doctrine of a non-witness expert. Discovery may be permitted when a specialist conducts a physical or mental medical test or where the proof is rendered to the court of extraordinary circumstances which render it difficult for a party seeking discovery to obtain facts or opinions on the same subject through any means.