Showing a Substantial Need May Compel Discovery of Attorney Work Product

This article considers the key holdings of the case Whitmore v. Kroger Ltd. P'ship I, 2024 U.S. Dist. LEXIS 207839, decided in December 2024 by the United States District Court for the Western District of Virginia. The primary issue in the case concerns the discoverability of work product materials, specifically witness statements and investigation details contained in an insurer's claim file, under the Federal Rules of Civil Procedure.

Plaintiff Whitmore filed a negligence claim against Kroger, alleging that a Kroger employee struck his shopping cart with a pallet jack, causing his injuries. Kroger denied that its employee hit Whitmore's cart. Shortly after the incident occurred, Sedgwick, Kroger's third-party claims administrator, performed an investigation and created a claim file. Surveillance video from the time of the incident was lost, so witness statements in Sedgwick's file became important evidence.

During discovery, Kroger produced some portions of Sedgwick's claim file but withheld other materials as privileged work product. Under the Federal Rules of Civil Procedure, specifically Rule 26(b)(3)(A), materials prepared in anticipation of litigation are protected as work product. However, such materials may be discoverable if the requesting party demonstrates a substantial need for the materials and an inability to obtain substantially equivalent information by other means without undue hardship. Similarly, in Virginia state courts, Supreme Court Rule 4:1(b)(3), specifically permits discovery of documents prepared in anticipation of litigation “by or for the other party’s representative… only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See also, Massenburg v. Hawkins, 70 Va. Cir. 13, 14 (2005); and, Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234 (2008). The “substantial need” element considers whether the information is essential to the requesting party's case and whether the facts can be obtained from an alternate source. The “undue hardship” element considers the burden on the requesting party to find the requested information from an alternate source.

Rule 26(b)(3)(A) “essentially divides work product into two categories. The first category, which is an extension of attorney-client privilege, absolutely protects from discovery any materials containing the impressions or legal theories of the attorney. The second category includes all other documents and tangible items prepared in anticipation of litigation. Such items can be obtained by the opposing party through discovery, but only upon showing of ‘substantial need’ by the party seeking discovery.” Massenburg, at 154. “The burden of proving that the document or thing to be protected was prepared in anticipation of litigation or trial lies with the party seeking to withhold it. If the Court finds that the material withheld was prepared in anticipation of litigation, it is protected from discovery unless the party seeking its production proves that they cannot obtain its substantial equivalent without undue hardship. Cintas, at 235.

In Whitmore, the court addressed the issue whether Sedgwick's claim file, which included witness statements and investigation details, was discoverable under Rule 26(b)(3)(A). The court found that Sedgwick prepared the remaining claim notes in anticipation of litigation, which qualified them as work product. The plaintiff, however, demonstrated a substantial need for the facts contained in the work product to prepare his case, as the incident occurred years ago and the surveillance video evidence was lost. The court found that Whitmore was “severely prejudiced” by the loss of the surveillance video when it came to his individual testimony against that of multiple Kroger employees. See, Whitmore, at *23.

The court recognized that “contemporaneous witness statements are ‘unique catalysts in the search for truth in the judicial process’” due to their reliability over statements made long after the occurrence. See, Whitmore, at *1. The court's decision to require Sedgwick to turn over its claim file aligns with the principles established in Virginia case law.

The court also considered the spoliation of evidence doctrine, which establishes a duty to preserve evidence relevant to reasonably foreseeable litigation and allows courts to order measures to cure prejudice resulting from the loss of such evidence.

The court in Whitmore held that the plaintiff could discover the fact work-product in Sedgwick's claim file, as he demonstrated substantial need and undue hardship. This case underscores the importance of contemporaneous witness statements and the conditions under which work product materials may be discoverable under Rule 26(b)(3)(A). The ruling also highlights the implications of spoliation of evidence and the duty to preserve relevant evidence in anticipation of litigation.

If you have questions about this article, please contact Denise Reverski (dreverski@setlifflaw.com) at 804-377-1272 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.