## Facts

- Mark Fletcher was an employee of Union Pacific Railroad Company (and related entities).
- On March 3, 1998, Fletcher fell while working on a moving train after a grab iron he was holding broke.
- Fletcher sued Union Pacific under the Federal Employers’ Liability Act (FELA), alleging substantial and permanent injuries and disability, and sought significant damages.
- After the accident, Union Pacific conducted covert surveillance and recorded Fletcher engaging in everyday activities on seven separate dates occurring roughly two to fifteen months after the accident.
- Union Pacific also arranged a defense medical examination. On November 12, 1999—about twenty months post-accident—Douglas Kiester, M.D., examined Fletcher and reported no objective signs of serious or permanent injury, including observations inconsistent with Fletcher’s claimed limp and cane use.
- During discovery, Fletcher filed an ex parte application seeking an order compelling Union Pacific to produce any surveillance films and related materials.
- Fletcher argued the surveillance would provide evidence bearing on the extent of his injuries; Union Pacific opposed disclosure, asserting attorney work-product protection.

## Issues

1. Whether Union Pacific’s post-accident surveillance films and related materials were protected from discovery as attorney work product under Federal Rule of Civil Procedure 26(b)(3).
2. If so, whether Fletcher showed “substantial need” and an inability, without “undue hardship,” to obtain the substantial equivalent by other means sufficient to justify compelled production at that stage.

## Decision

- The court denied Fletcher’s ex parte application to compel production of Union Pacific’s surveillance materials.
- The court treated the surveillance materials as work product prepared in anticipation of litigation.
- The court concluded Fletcher had not made the showing required by Rule 26(b)(3) to obtain discovery of protected work product at that time.

## Legal Principles

- Under Federal Rule of Civil Procedure 26(b)(3), documents and tangible things prepared in anticipation of litigation are generally protected from discovery.
- Work product may be discovered only if the requesting party demonstrates (a) a substantial need for the materials to prepare its case and (b) an inability, without undue hardship, to obtain the substantial equivalent by other means.
- Surveillance materials obtained for litigation purposes may qualify as work product, particularly where they are intended for trial preparation and possible impeachment.
- A plaintiff’s desire to evaluate the defendant’s evidence about the plaintiff’s physical condition does not, standing alone, establish substantial need when the plaintiff can present evidence of his condition through his own testimony, treating providers, medical examinations, and other discovery tools.
- Trial courts have discretion to manage the timing and scope of discovery, including whether and when surveillance materials must be produced.

## Conclusion

Fletcher held that Union Pacific’s post-accident surveillance films were protected work product in this FELA case and that Fletcher did not satisfy Rule 26(b)(3)’s substantial-need and undue-hardship requirements to compel their production through an ex parte request during discovery.


Fletcher v. Union Pacific Railroad Co., 194 F.R.D. 666 (2000)