Opinion
No. 98-CC-0029
March 20, 1998
IN RE: Cook, Cynthia; — Plaintiff(s); Applying for Supervisory and/or Remedial Writ; Parish of St. Bernard 34th Judicial District Court Div. "B" Number 79-462; to the Court of Appeal, Fourth Circuit, Number 97CW-2300
Denied.
HTL
WFM
CDT
JTK
CALOGERO, C.J. would grant the writ.
LEMMON, J. concurs in the denial and assigns reasons.
KIMBALL, J. would grant the writ.
JOHNSON, J. would grant the writ.
VICTORY, J. not on panel.
By their nature, the statements of the witnesses to plaintiff's accident are the work product of the defendant. The statements were taken because of the prospect of litigation and therefore "in anticipation of litigation." La. Code Civ.Proc. art. 1424.
Under Ogea v. Jacobs, 344 So.2d 953 (La. 1977), the party seeking to compel production of work product is required to establish that denial of production will unfairly prejudice him or cause him undue hardship. The mere fact that the statements were taken immediately after the accident does not alone justify production. In this case, plaintiff has not established undue hardship. If plaintiff can make a further showing that the witnesses are unavailable or are unable to remember significant facts or have an incomplete memory, perhaps that additional showing will establish undue hardship and will provide the basis for further discovery motions.