Defendants' accident scene photographs usually deserve work product protection if the defendants reasonably anticipated litigation. But plaintiffs frequently can overcome that protection for photographs defendants took immediately after the accident – if the scene changed by the time the plaintiffs arranged for their own photographs.

In Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018), plaintiff fell into a construction hole on January 31, 2017. Because of his hospitalization, he did not retain a lawyer until April. Plaintiff sought defendant's accident scene photographs, arguing that "by the time he was able to obtain photographs, the site had changed dramatically." Id. at *15. But the court rejected plaintiff's argument -- noting that defendant's photographs "establish that the work site had already been altered to prevent other similar accidents." Id. In other words, defendant's post-accident photographs were no more valuable than plaintiff's later photographs, because neither one showed the January 31 conditions.

Litigants' efforts to overcome adversaries' work product protection involve timing and other nuances that generally do not arise with the more abstract and absolute attorney-client privilege.