
    Cynthia COOK v. K-MART CORPORATION, et al.
    No. 98-CC-0029.
    Supreme Court of Louisiana.
    March 20, 1998.
   In re Cook, Cynthia; — Plaintiffs); applying for supervisory and/or remedial writ; Parish of St. Bernard, 34th Judicial District Court, Div. “B”, No. 79-462; to the Cpurt of Appeal, Fourth Circuit, No. 97CW-2300.

Denied.

CALLOGERO, C.J., and KIMBALL and JOHNSON, JJ., would grant the writ.

LEMMON, J., concurs in the denial and assigns reasons.

VICTORY, J., not on panel.

LEMMON, Justice,

concurring in the Denial of the Application.

By their nature, the statements of the witnesses to plaintiffs 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.  