October 7, 2015 (PRIVILEGE POINT)
"What Level of Litigation "Anticipation" Triggers Work Product Protection?"
One of the great ironies of work product protection involves federal courts' widely varying interpretation of the single sentence codifying the Federal Rules' work product protection. Fed. R. Civ. P. 26(b)(3)(A). Among many other things, federal courts disagree about the required level of litigation "anticipation" that can trigger protection.
In Tate & Lyle Americas, LLC v. Glatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265, at *6 (C.D. Ill. July 31, 2015), the court held that the protection can apply only when "'some articulable claim, likely to lead to litigation, [has] arisen.'" (Alteration in original; emphasis added; citation omitted.) Three days later, the District of New Jersey acknowledged that "litigation need not be imminent" for the work product doctrine to kick in, but that "'there must be an identifiable specific claim of impending litigation.'" Shipyard Assocs., L.P. v. City of Hoboken, Civ. A. No. 14-1145 (CCC), 2015 U.S. Dist. LEXIS 100927, at *15 (D.N.J. Aug. 3, 2015). In that case, the court did not articulate exactly where along the "anticipation" spectrum the work product doctrine could apply. This ambiguity is unfortunate, because federal courts' standards range from "imminent" to "some possibility" of litigation.
In their roles as defendants, corporations usually do not know where they will be sued — so they normally will not know in advance what degree of anticipation will satisfy the work product standard of the court in which they will find themselves litigating.