Question

A windstorm blew down a light in the parking lot of a grocery store, hitting one of the store's customers. The customer filed a civil action against the store seeking compensatory damages, alleging that the store negligently maintained the light. After the action was filed, the store's lawyer visited the store and spoke with one of the store's clerks who saw the light fall. The lawyer asked the clerk to write out in his own words and handwriting exactly what he saw, and the clerk did so. The lawyer then asked the clerk a number of questions about the incident and wrote his own notes in the margins of the statement written by the clerk. Unfortunately, the clerk died in an unrelated car accident two weeks later. The customer's lawyer served a document request on the store seeking all documents relating in any way to the accident. In response, the store described the written statement prepared by the clerk but refused to produce it. The customer filed a motion asking the court to compel the store to produce the statement. How should the court rule

Answer 1

Answer: As long as the customer can show that she has no other way to obtain the information provided by the clerk, the document must be produced but with the notes written by the store's lawyer redacted

Explanation:

It should be noted that the court should order the statement to be produced by the store but the notes which are written by the lawyer of the store should be redacted.

The statement is a work product and this is discoverable as long as the opposing party can be able to show substantial need and due to the fact the clerk died in an accident, this is a substantial need.