Published in the Massachusetts Bar Association, Section Review, Vol. 7, No. 2, 2005
Witness statements are customarily considered to be protected attorney work product. However, there is an important exception to this doctrine. Mass.R.Civ.P. 26(b)(3) provides that documents prepared in anticipation of litigation are discoverable “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.” Statements taken very shortly after an accident have often been held to be discoverable on the grounds that a deposition taken much later is not the “substantial equivalent” of a witness’ contemporaneous recollection recorded in a post-accident statement. The Massachusetts courts have not addressed this issue, but, because the federal equivalent, Fed.R.Civ.P. 26(b)(3), corresponds to the Massachusetts rule, Massachusetts will follow the federal courts’ construction of Fed.R.Civ.P. 26(b)(3).
Initially, it should be noted that the issue of whether a witness statement taken by an insurance investigator is even work product at all is itself a significant legal issue. This article will address only the discoverability of actual work product, and will leave the question of what is work product for another day.
The Massachusetts federal courts have addressed this issue 3 times, but only once in the context of the discoverability of a witness statement in a personal injury case. That case, Savoy v. Richard A. Carrier Trucking, Inc., involved a statement given by the defendant to the defendant’s claims representative at least 3-4 weeks after the motor vehicle accident in question. In that case, Magistrate Judge Neiman held that the statement was work product, but that the plaintiff was entitled to obtain the statement. Savoy held that statements taken at the time of the incident “are unique in that they provide an immediate impression of the facts,” and that “a lapse of time itself may make it impossible to obtain the substantial equivalent of the material sought.” As will be discussed later, however, the judicial consensus on this issue suggests that the most compelling arguments in support of discoverability primarily exist in the first few days or weeks after the accident. Accordingly, an attorney who is contemplating a motion to compel production of a post-accident statement should assume that statements taken more than a few weeks post-accident will probably not be discoverable without extenuating circumstances. While Savoy did not state explicitly that its decision was based on such extenuating circumstances, it did note in support of its conclusion that the fact that the defendant truck driver had allegedly lost his log book “enhances the need” for the statement, and that the statement was also relevant to a bad faith claim in the case.
The most recent case, City of Springfield v. Rexnord Corporation, was also written by Magistrate Judge Neiman. The opinion did not explain the nature of the litigation, but the dispute involved the discoverability of documents prepared by the defendant’s in house counsel in anticipation of possible litigation with the Massachusetts Department of Environmental Quality Engineering about 18 years prior to the instant litigation. The documents included correspondence of the defendant’s in house counsel and notes of a witness interview. Magistrate Judge Neiman repeated his legal analysis from Savoy, holding that the plaintiff had substantial need for the documents and that “it would be practically impossible for Plaintiff to obtain the substantial equivalent of the information without undue hardship.” He noted that some of the witnesses could not be found, and that there was “no indication that these particular documents were intended to be confidential or reflect an attorney’s mental impressions or legal theories.”
The first Massachusetts case, Connelly v. Dun & Bradstreet, Inc., did not address the issue in significant detail. It merely recited the general rule that “where contemporaneous statements have been made that cannot be reproduced, courts will often order the production of work product.”
The doctrine has been best explained by the Fourth and Fifth Circuits, in the cases of McDougall v. Dunn and Southern Railway Company v. Lanham. In Lanham, a 1968 case, the plaintiff’s decedents were killed when their car collided with a train. Several of the defendant’s employees witnessed the accident. The defendant’s claims department took statements from these employees within 3 days of the accident. The Fifth Circuit engaged in an extensive discussion of when “good cause” under Fed.R.Civ.P. 34 would exist for the production of the statements. The court focused its analysis on whether, by deposing the witnesses, the plaintiff would be able to obtain “the substantial equivalent of the prior statements.” The court began its reasoning as follows:
In this case, it is doubtful that [the plaintiff] could presently obtain a full and accurate disclosure of the facts through depositions of the train crew.
Statements taken [almost 2 years after the accident] are likely to be unreliable due to the lapse of time. For this reasons, statements taken from the witnesses shortly after the accident constitute “unique catalysts in the search for truth,” in that they provide an immediate impression of the facts that cannot be recreated or duplicated by a deposition that relies upon memory, and many courts have held that the mere lapse of time in itself is enough to justify production of the statements.
In a footnote to the above remarks, the court observed the practical significance of taking statements as soon as possible:
Claim agents and adjusters long ago learned the difference in the value of a statement one day after an accident and one a month after it. Every trial lawyer knows how disconcerting it may be to have a witness, on cross examination, confronted with an old and forgotten statement. Signed statements from all important witnesses, at the first opportunity, in personal injury cases, are especially important where the trial may be long delayed or the opposing side has constant or easy access to the witnesses.
The court then considered the employment status of the witnesses, noting that “the employment relationship [between the witnesses and the defendant] would appear to create a situation of inequality between the parties with respect to gathering accurate statements from the crew,” and concluding that “[i]t seems to be generally recognized that ‘the requirement of good cause is more easily satisfied when witnesses are employees [of the defendant] than in the usual case.'”
In the 1972 McDougall case, the plaintiff was unable to remember the events of the accident, but the defendant and 2 occupants of his car had given written statements to the defendant’s insurance company “shortly” after the accident. However, the decision did not explicitly state just how long after the accident the statements were given. The court repeated the term “shortly” several times, so one can only assume that the statements were taken within days of the accident. While the court did not consider the statements to have been work product, it held that, even if they were work product, they were discoverable. The court wrote:
Statements of either the parties or witnesses, taken immediately after the accident and involving a material issue in an action arising out of that accident, constitute “unique catalysts in the search for truth” in the judicial process; and where the party seeking their discovery was disabled from making his own investigation at the time, there is sufficient showing under the amended Rule to warrant discovery.
[T]he lapse of many months and the dimming of memory provides much reason for [the plaintiff’s] counsel to examine any substantially contemporaneous declarations or admissions. Aside from what assistance it may be in the preparation of a case for trial, the production of such a statement, after the lapse of time, permits a more realistic appraisal of cases and should stimulate the disposition of cases without trials.
The court also cited the Advisory Committee Notes to the 1970 amendments of Rule 26, which noted that the circumstances when a witness statement would be discoverable included when the witness had “given a fresh and contemporaneous account in a written statement while he is available to the party seeking discovery only a substantial time thereafter.”
Two significant district court cases are Hamilton v. Canal Barge Company, Inc. and Suggs v. Whitaker. Hamilton involved statements that had been taken on the day of the accident. The court held that “there is now substantial authority for the proposition that statements taken from witnesses close to the time of the occurrence are unique, in that they provide an immediate impression of the facts.” The court cited a number of scholarly articles for the proposition that “the sharpest drop in a witness’ ability to recall a scene or an event occurs shortly after he witnesses it – certainly within a day or two.” The court followed up by emphasizing the uniqueness of the contemporaneous statement:
What the psychological evidence suggests, then, is that these eyewitness statements, taken within hours of the accident at issue, are likely to contain information that no deposition could bring out.
Hamilton concluded that statements that had not been taken immediately following an accident would be discoverable only upon proof of something more – i.e., proof that the witness was unavailable or that the witness’ memory was faulty.
In Suggs, the defendant veered across an interstate highway and hit the oncoming plaintiffs’ vehicle. One person in the plaintiffs’ car died, and the survivors were not able to testify as to how the accident happened because they did not see the defendant’s car coming. The court ordered production of statements given by the defendant and a witness in another vehicle to the defendant’s insurer within one week of the accident. In analyzing the issue, the court described substantial need as follows:
A finding of substantial need involves consideration of two factors. The first is the nature of the documents (i.e., their relevance and importance), and the second is the ability to obtain the facts (or the substantial equivalent) from other sources. To constitute a “substantial” need, a strong showing of either factor in conjunction with the other is necessary.
Suggs held that substantial need could be established “by showing the document is necessary for impeachment purposes or to prevent fraud or misuse of the Court.” However, the court warned that “production of impeaching documents is not a substitute for pretrial discovery,” and, in order to obtain a statement under this rule, a party seeking such statements “must present more than speculative or conclusory statements that the [statements] will contain invaluable impeachment material.” Suggs noted that the party seeking the statements may have to depose the witness before “claiming an inability to obtain the substantial equivalent of work product documents without undue hardship,” but held that, “if a party or witness has no recollection of the events of the accident, this loss of memory constitutes an inability to obtain the substantial equivalent of the facts in the report by other means.”
It is important to realize that Suggs ordered the 2 statements to be produced for different reasons. The court found that the witness from the other vehicle claimed to have an excellent memory of the events of the accident, but had no memory of any statements that anyone may have made just after the accident. The court held that, because of this, the plaintiffs had made “a very specific showing that the contemporaneous statement [of the witness] may well contain valuable impeaching material concerning contemporaneous statements made or not made about the events of the accident.” The court then addressed the defendant’s statement. The court found that the defendant’s deposition testimony showed an excellent memory of the events of the accident. As a result, the court found that the plaintiffs had the substantial equivalent of the defendant’s recorded statement, and that they had failed to show that they had a need for the statement for impeachment purposes. The court ordered the statement to be produced:
because the statement is the only contemporaneous statement of a direct witness of the accident, and because only defendants have such a statement, the policy considerations behind Rule 26(b)(3) in favor of exposing relevant facts requires disclosure to the opposing side.
A few guidelines can be distilled from these cases. The bottom line is that any party seeking production of a statement taken shortly after an incident is still seeking someone else’s hard earned work product, and courts are understandably reluctant to order that such work product be turned over. Accordingly, it should be assumed that the only witness statements that one can reasonably expect to obtain over the opponent’s objection are the most contemporaneous statements – i.e., those taken within a couple of days or a week at most of the incident in question. Before filing such a motion, counsel should certainly depose the witness in question. The party’s claim for the statements will be strengthened if the witness’ memory is either subjectively or objectively faulty as to all of the facts of the incident in question, or at the very least testifies that he or she is currently unsure of all of the facts of the incident. The strongest case for obtaining the statement will be made when one is either representing an estate or a client with no memory of the accident.
Even for a statement taken within hours or days of the accident, one should not assume that production will be automatic, especially if production is sought before the witness is deposed. While production of such contemporaneous statements has generally been ordered, courts have denied requests for production of these contemporaneous statements at least until the witness has been deposed. Even then, a court will not order production of a statement “merely because there are minor discrepancies between it and a deposition.”
 Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975).
 The District of Massachusetts uses “a case by case approach to determine whether the matter was prepared in anticipation of litigation.” Sham v. Hyannis House Hotel, Inc., 118 F.R.D. 24, 25 (D. Mass. 1987). The test is “whether in light of the nature of the document and the factual situation in the particular case the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Colonial Gas Co. v. Aetna Cas. & Sur. Co., 144 F.R.D. 600, 605 (D. Mass. 1992).
 176 F.R.D. 10 (D. Mass. 1997).
 The opinion did not set forth how soon after the accident the statement was taken. The opinion states only that the plaintiff’s attorney sent a claim letter to the defendant on September 15, 1994 and the statement in question was taken on October 5, 1994. Id. at 14. Given the fact that the plaintiff would have probably taken at least a brief period of time to retain an attorney, and that the attorney would have had to open a file and get a claim letter out in the mail, it is reasonable to assume that the statement was taken at least a month after the accident.
 Id., citing Tiernan v. Westext Transport, Inc., 46 F.R.D. 3, 3-4 (D.R.I. 1969) and Phillips v. Dallas Carriers Corp., 133 F.R.D. 475, 480-481 (M.D.N.C. 1990) (plaintiff with no memory of the accident had substantial need for statement taken from defendant on the day of the accident).
 Savoy, supra.
 196 F.R.D. 7 (D. Mass. 2000).
 Id. at 10.
 96 F.R.D. 339 (D. Mass. 1982).
 Id. at 343. The court also specifically noted that “mere inconvenience or expense is not such need as will defeat the ‘work product’ protection.” Id.
 468 F.2d 468 (4th Cir. 1972).
 403 F.2d 119 (5th Cir. 1968).
 Id. at 123.
 Id. at 127.
 This oft-cited quotation originated in the case of Johnson v. Ford, 35 F.R.D. 347, 350 (D. Col. 1964), which cited DeBruce v. Pennsylvania Railroad Co., 6 F.R.D. 403, 406 (E.D. Pa. 1947) for the development of the phrase.
 Id. at 127-128 (citations and original punctuation omitted).
 Id. at 128 n. 7, citing Gardner, The Perception and Memory of Witnesses, 18 Corn. L.Q. 391, 393-394 (1933) and 2A Barron & Holtzoff §652.4, n. 22 (Wright ed. 1961); see also Hamilton v. Canal Barge Company, Inc., 395 F. Supp. 975, 978 (E.D. La. 1974); People v. United States of America, 27 F.R.D. 261, 262 (N.D. Cal. 1961) (“Not only are ‘on-the-spot’ statements more reliable than later statements made months after the occurrence, but they relate as well as to the credibility of witnesses originally under the control of and exclusively available to the adverse party.”).
 Lanham, supra at 128.
 Id. at 129.
 McDougall, supra at 470.
 Id. at 474 (citations omitted); see also McDonald v. Clubb, 143 F.R.D. 103, 105 (W.D.N.C. 1992) (court ordered production of witness statement taken shortly after the accident where plaintiff had no memory of the accident), quoting McDougall, supra.
 Id. at 475 (it should also be noted that the Advisory Committee notes cited Lanham with approval). The court also cited Wright, Federal Courts (2d ed., 1971), for the proposition that both psychological studies and common sense illustrate that “the statement taken nearest to the event will most accurately reflect the perception the witness had of the event.” Id. at 474 n. 9.
 152 F.R.D. 501 (M.D.N.C. 1993).
 Hamilton, supra at 977. While the Hamilton court had cited Lanham in its decision, it did not cite Lanham as authority for this proposition.
 Id. (citations omitted).
 Id. at 978.
 Suggs, supra at 504. It should be noted that the situation was not one of the plaintiffs having no memory of the accident, but that they did not see the accident happen.
 Id. at 507 (citation omitted).
 Id. at 508.
 Id. at 507-508, citing McDougal, supra at 475. The court emphasized that “the impeachment value must be substantial because every prior statement has some impeachment value and otherwise the exception would swallow the rule.”
 Id. at 507 (citations omitted); see also In re International Systems and Controls Corporation Securities Litigation, 693 F.2d 1235, 1240 (5th Cir. 1982) (“Plaintiff may however demonstrate undue hardship if the witness cannot recall the events in question, or is unavailable.”). Suggs also cited the “unique catalyst” language, holding that “contemporaneous statements made immediately after an accident constitute material of special relevance and importance.” Suggs, supra.
 Id. at 508.
 Id. It should be noted that Suggs appears to be the only case which explicitly held that policy considerations required production of a contemporaneously taken statement of a witness who, at deposition, was found to have had an excellent memory of the accident in question. The court also noted that “disclosure of such unique statements will have the important side effect of providing a more realistic appraisal of a case by the parties thereby facilitating settlement prior to trial.” Id. at 509.
 E.g., Carson v. Mar-Tee, Inc., 165 F.R.D. 48, 50 (E.D. Pa. 1996) (the plaintiff did not demonstrate substantial need for a statement taken several months after the accident when there was no inconsistency between the statement and the deposition testimony); Suggs, supra at 508 n. 5 (“Statements made several weeks or a month after the event may not” qualify as contemporaneous); Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 775 (M.D. Pa. 1985) (the court refused to allow production of a statement taken one month after the accident, holding that it was “neither contemporaneous nor unique,” and that “substantially the same information” could be obtained through a deposition).
 E.g., McDougall, supra; Lanham, supra; Suggs, supra; McDonald, supra; Phillips, supra.
 E.g., National Union Fire Insurance Company of Pittsburgh, PA. v. Murray Sheet Metal Company, Incorporated, 967 F.2d 980, 985 (4th Cir. 1992) (statements taken 1 day after the accident were discoverable, citing McDougall); DeGiacomo v. Morrison, 2003 DNH 211, 2003 U.S. Distr. LEXIS 21803 (D.N.H. 2003) (statement taken 4 days after accident was discoverable, citing Savoy); Coogan v. Cornet Transportation Co., Inc., 199 F.R.D. 166, 167-168 (D. Md. 2001) (account report prepared by defendant at the accident scene was discoverable, citing McDougall); Smith v. Diamond Offshore Drilling, Inc., 168 F.R.D. 582, 584-585 (S.D. Tex. 1996) (statements taken a few days after the accident were discoverable); Phillips, supra.
 In the case of Cade v. Monica Lee Tugs, Inc., 2004 U.S. Distr. LEXIS 21422 (E.D. La. 2004), the defendant took statements within 2 days after the accident, but the court, citing Hamilton, denied without prejudice plaintiff’s motion to compel production of the statements because the plaintiff had not taken the depositions of the witnesses in question. In the case of Gargano v. Metro-North, 222 F.R.D. 38 (D. Conn. 2004), the court held that 3 witness statements taken the day after an accident were not discoverable because the plaintiff had not established substantial need. The court noted that the plaintiff had deposed 2 of the witnesses, and would be deposing the third, and had not claimed that any of the witnesses “made statements to the claim adjuster that they could not later recall at their depositions,” and that there was no “evidence of inconsistency between the prior statements and the deposition testimony.” Id. at 40; see also Almaguer v. Chicago, Rock Island & Pacific Railroad Company, 55 F.R.D. 147, 150-151 (D. Neb. 1972) (court denied production of statement given 1 month after incident when witness, who had been deposed, was not asked, among other things, whether his memory was faulty).
 Hamilton, supra; see also Connelly, supra (“mere inconvenience or expense is not such need as will defeat the ‘work product’ protection”).