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Case 1:15-cv-07433-LAP Document 1320-18 Filed 01/03/24 Page 36 of 40 at 16. But providing information in support of a summary judgment motion is a routine step that attorneys take every day. While the materials produced are obviously not subject to work product protection, other materials and communications do not somehow become subject to discovery. Paradise Divers, Inc., 943 So. 2d at 814. B. Defendant Has Not Proven “Need” to Penetrate Work-Product Protection. Defendant’s argument on work product protection also simply assumes that it is the same as the attorney-client privilege and can be waived under an “at issue theory.” But the “at issue” legal theory Defendant relies on to argue (incorrectly) that attorney-client privilege has been waived applies only to that privilege. The work product doctrine is quite distinct from attorney- client privilege, and application of the privileges and exceptions to them differ. See West Bend Mutual Ins. Co. v. Higgins, 9 So.3d 655, 656 (Fla. 5" DCA 2009); Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064, 1068 (Fla. 2011), as revised on denial of reh’g (2011). The function of the work product doctrine is to protect counsel’s mental impressions. West Bend Mutual, 9 So.3d at 656. To pierce the privilege, Defendant must show “that the substantial equivalent of the material cannot be obtained by other means.” Southern Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1385 (Fla.1994). Defendant has not even identified any specific work- product she claims to need, much less shown why she cannot get the underlying information from other sources. Under the law of Florida (and elsewhere”’), to establish “need,” a party must present testimony or evidence demonstrating the material requested is critical to the theory of the 3 Both federal and New York state law extend work product protections similar to those found in Florida law. See, e.g., Hickman v. Taylor, 329 U.S. 495, 511 (1947); N.Y. Civ. Practice Law & Rules § 3101(c) (McKinney). Indeed, New York state law may go even further than Florida’s and extends “absolute” work-product protection. See Charter One Bank, F.S.B. v. Midtown Rochester, L.L.C., 191 Misc. 2d 154, 159, 738 N.Y.S.2d 179, 185 (Sup. Ct. 2002) (section 3101(c) “affords absolute immunity from disclosure of attorney's work product.”). 29